ABDUSSALAM V. THE ASSISTANT COMMISSIONER OF INCOME TAX (BPU)

WP(C)/16700/2022

AI Insights

The case involves Abdussalam, the petitioner, who challenged the proceedings initiated against him under the Prohibition of Benami Property Transactions Act, 1988. The core of the dispute was the jurisdiction of the authorities to initiate such proceedings. The petitioner argued that the proceedings were without jurisdiction and thus could be directly challenged under Article 226 of the Constitution of India. The respondents, representing various income tax departments, contended that the petitioner could raise all contentions, including jurisdiction, before the concerned authority, which could then be addressed before proceeding further. The court decided to allow the petitioner to file a detailed reply addressing the jurisdictional issue, which the competent authority must resolve before moving on to other matters.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 751362 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-06-2022
• Assessment Year: misc
• Laws Referred To: Prohibition of Benami Property Transactions Act, 1988, Article 226 of the Constitution of India, Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: MANU S; SUVIN MENON; CHRISTOPHER ABRAHAM
• Assessee Lawyers: LATHA ANAND; M N MENON; GOVIND P; K R KUMAR; RADHAKRISHNA B; SIDHARTH
• Keywords: Benami property transactions; Income Tax; Jurisdiction; Notice; Provisional attachment
• Section: 153C; 24(1); 131(1A); 26(1)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 WP(C) NO. 16700 OF 2022 PETITIONER: ABDUSSALAM AGED 39 YEARS KADAKKADAN HOUSE, CHELAKUTH KALLARMANGALAM (P.O.) MALAPPURAM DISTRICT, PIN-676 553. BY ADVS. LATHA ANAND M.N.RADHAKRISHNA MENON GOVIND P. K.R.PRAMOTH KUMAR RADHAKRISHNA PILLAI B SIDHARTH P.S. RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF INCOME TAX (BPU) BENAMI PROHIBITION UNIT, POORNIMA BUILDING,3RD FLOOR, PANAMPILLY NAGAR, KOCHI, PIN – 682 036. 2 THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION), AAYKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR, PIN - 680 001. 3 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, KOZHIKODE, AAYAKAR BHAVAN, NORTH BLOCK, NEW ANNEXE BUILDING, MANANCHIRA KOZHIKODE-673 001. 4 THE ASSISTANT DIRECTOR OF INCOME TAX (INVESTIGATION), CHUNDAKKAYIL COMPLEX, OFFICE OF DDIR/ADIT (INV.), MANJAKULAM ROAD, PALAKKAD, PIN - 678 014. BY ADV MANU S., ASG OF INDIA ADV.SUVIN R MENON, CGC ADV.CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 16700 OF 2022 2 JUDGMENT The petitioner has approached this Court challenging proceedings initiated against the petitioner under the provisions of the Prohibition of Benami Property Transactions Act, 1988. 2. The learned counsel for the petitioner submits that the proceedings are totally without jurisdiction. It is submitted that since the proceedings are totally without jurisdiction, it is open to the petitioner to challenge those proceedings directly before this Court under Article 226 of the Constitution of India. 3. The learned Assistant Solicitor General of India, who appears for the 1st respondent and the learned Standing Counsel appearing for respondents 2 to 4 would however contend that it is open to the petitioner to raise all contentions including a contention that the proceedings are without jurisdiction before the authority concerned. It is submitted that if the petitioner files a composite reply to the notice issued to him and raises a jurisdictional issue, the writ petition can be disposed of directing the competent authority to decide on the question of jurisdiction before proceeding further in the matter. WP(C) NO. 16700 OF 2022 3 4. The learned Counsel appearing for the 1st respondent also submits that the relief has to be confined to the petitioner alone as the authority may have proceeded further in respect of other persons who are co-noticees along with the petitioner. 5. The learned counsel for the petitioner submits that the time granted under Ext.P13 for filing a reply expires on 02.06.2022 and and a weeks time may be granted to enable the petitioner to file a proper reply to Ext.P13. Taking into account the submissions made by both sides, this writ petition will stand disposed of directing that if the petitioner files a composite reply to Ext.P13 notice on or before 10.06.2022, the competent authority shall take a decision on any jurisdictional issue raised by the petitioner in the reply after affording an opportunity to the petitioner to make his submissions. The authority shall proceed to decide other issues only after taking a decision on the preliminary issue of jurisdiction. It is also directed that as the time limit for filing a reply has already expired on 31.03.2022, sufficient time may be granted to file a reply. Sd/- GOPINATH P. JUDGE DK WP(C) NO. 16700 OF 2022 4 APPENDIX OF WP(C) 16700/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER DATED 21/03/2021 SUBMITTED BY MR. MOHAMMED SHEREEF. Exhibit P2 TRUE COPY OF THE SUMMONS DATED 16/04/2021 ISSUED TO THE PETITIONER. Exhibit P3 TRUE COPY OF THE UNDATED REPLY FILED 2 BY THE PETITIONER. Exhibit P4 TRUE COPY OF THE SUMMONS UNDER SEC. 131(1A) OF THE INCOME TAX ACT DATED 16/04/2021 ISSUED TO MR. SHEREEF MOHAMMED. Exhibit P5 TRUE COPY OF REPLY E-MAIL DATED 27/04/2021 SENT BY BY MOHAMMED SHEREEF. Exhibit P6 TRUE COPY OF NOTICE DATED 07/09/2021 UNDER SECTION 153C OF THE INCOME TAX ACT, 1961 ISSUED TO THE PETITIONER. Exhibit P7 TRUE COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER WITH RESPECT TO THE ASSESSMENT YEAR 2015-16. Exhibit P7 A TRUE COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER WITH TO RESPECT TO THE ASSESSMENT YEAR 2016-17. Exhibit P7 B TRUE COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER WITH RESPECT TO THE ASSESSMENT YEAR 2017-18. Exhibit P7 C TRUE COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER WITH RESPECT TO THE ASSESSMENT YEAR 2018-19. Exhibit P7 D TRUE COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER WITH RESPECT TO THE WP(C) NO. 16700 OF 2022 5 ASSESSMENT YEAR 2019-20. Exhibit P7 E TRUE COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER WITH RESPECT TO THE ASSESSMENT YEAR 2020-21. Exhibit P7 F TRUE COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER WITH RESPECT TO THE ASSESSMENT YEAR 2021-22. Exhibit P8 TRUE COPY OF THE RETURN OF INCOME FILED BY MOHAMMED SHEREEF WITH RESPECT TO THE ASSESSMENT YEAR 2015-16 . Exhibit P8 A TRUE COPY OF THE RETURN OF INCOME FILED BY MOHAMMED SHEREEF WITH RESPECT TO THE ASSESSMENT YEAR 2016-17. Exhibit P8 B TRUE COPY OF THE RETURN OF INCOME FILED BY MOHAMMED SHEREEF WITH RESPECT TO THE ASSESSMENT YEAR 2017-18. Exhibit P8 C TRUE COPY OF THE RETURN OF INCOME FILED BY MOHAMMED SHEREEF WITH RESPECT TO THE ASSESSMENT YEAR 2018-19. Exhibit P8 D TRUE COPY OF THE RETURN OF INCOME FILED BY MOHAMMED SHEREEF WITH RESPECT TO THE ASSESSMENT YEAR 2019-20. Exhibit P8 E TRUE COPY OF THE RETURN OF INCOME FILED BY MOHAMMED SHEREEF WITH RESPECT TO THE ASSESSMENT YEAR 2020-21 . Exhibit P8 F TRUE COPY OF THE RETURN OF INCOME FILED BY MOHAMMED SHEREEF WITH RESPECT TO THE ASSESSMENT YEAR 2021-22. Exhibit P9 TRUE COPY OF THE ASSESSMENT ORDER DATED 31/03/2022 ISSUED TO THE PETITIONER, WITH RESPECT TO THE ASSESSMENT YEAR 2015-16. Exhibit P 9 A TRUE COPY OF THE ASSESSMENT ORDER DATED 31/03/2022 ISSUED TO THE PETITIONER, WITH WP(C) NO. 16700 OF 2022 6 RESPECT TO THE ASSESSMENT YEAR 2016-17. Exhibit P9 B TRUE COPY OF THE ASSESSMENT ORDER DATED 31/03/2022 ISSUED TO THE PETITIONER, WITH RESPECT TO THE ASSESSMENT YEAR 2017-18. Exhibit P 9 C TRUE COPY OF THE ASSESSMENT ORDER DATED 31.03.2022 ISSUED TO THE PETITIONER, WITH RESPECT TO THE ASSESSMENT YEAR 2018-19. Exhibit P9 D TRUE COPY OF THE ASSESSMENT ORDER DATED 31.03.2022 ISSUED TO THE PETITIONER, WITH RESPECT TO THE ASSESSMENT YEAR 2019-2020. Exhibit P9 E TRUE COPY OF THE ASSESSMENT ORDER DATED 31.03.2022 ISSUED TO THE PETITIONER, WITH RESPECT TO THE ASSESSMENT YEAR 2020-21. Exhibit P9 F TRUE COPY OF THE ASSESSMENT ORDER DATED 31.03.2022 ISSUED TO THE PETITIONER, WITH RESPECT TO THE ASSESSMENT YEAR 2021-22. Exhibit P10 TRUE COPY OF NOTICE DATED 03/01/2022 UNDER SECTION 24(1) OF THE PROHIBITION OF BENAMI PROPERTY TRANSACTION ACT, 1988. Exhibit P11 TRUE COPY OF THE REPLY DATED 11/01/2022 SUBMITTED BY THE PETITIONER . Exhibit P12 TRUE COPY OF THE ORDER OF PROVISIONAL ATTACHMENT DATED 20/01/2022. Exhibit P13 TRUE COPY OF NOTICE DATED 04/02/2022 87 UNDER SECTION 26(1) OF THE PBPT ACT . Exhibit P14 TRUE COPY OF THE INTERIM ORDER DATED 09/03/2020 IN W.P.(C) NO. 6938 OF 2020. "