AVARA HAJI V. THE INCOME TAX OFFICER

WP(C)/14204/2012

AI Insights

The case revolves around Avara Haji, the petitioner, who challenged the Income-Tax Appellate Tribunal's order declining to condone a significant delay (1270 days) in filing an appeal against a tax demand. The demand was for Rs. 3,51,794 for the assessment year 1999-2000 and Rs. 3,855 for 2005-06. The petitioner had earlier approached the High Court, which dismissed his writ petition challenging the tax demand on the grounds that he did not follow the statutory procedures after the disposal of his appeal in 2006. Subsequently, the petitioner approached the Tribunal with a delayed appeal, which was also dismissed, leading to this writ petition.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 699183 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 18-06-2012
• Assessment Year: misc
• Other Referred Cases: WP(C) No. 7108/2005, WP(C) No. 16414/2010
• Laws Referred To: Article 226 of the Constitution
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: C K RAMAKRISHNAN
• Keywords: Delay Condone; Income Tax; Tribunal; Writ petition
• Section: 483/2009

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 18TH DAY OF JUNE 2012/28ND JYAISHTA 1934 WP(C).No. 14204 of 2012 (A) --------------------------- PETITIONER(S): ------------- AVARA HAJI,, AGED 65 YEARS KATTUKANDAN HOUSE,KULIKKILIYAD.P.O,KOTTAPPURAM PALAKKAD DISTRICT. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT(S): -------------- THE INCOME TAX OFFICER, WARD NO.2, PALAKKAD-678001. BY SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 14204/2012 APPENDIX PETITIONER(S) EXHIBITS EXT-P1 TRUE COPY OF THE WP(C) 7108/2005 EXT-P2 TRUE COPY OF APPEAL MEMORANDUM WITH DELAY PETITION EXT-P3 TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 23.02.2010 EXT-P4 TRUE COPY OF THE WP(C)16414/2010 EXT-P5 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 12.07.2010 EXT-P6 TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN INCOME TAX APPELLATE TRIBUNAL IN I.T.A.483/2009 RESPONDENTS' EXHIBITS NIL // TRUE COPY // P.A. TO JUDGE SD P.R.RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c) No. 14204 OF 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June , 2012 JUDGMENT The issue involved in this writ petition is, whether Ext.P6 order passed by the Income-Tax Appellate Tribunal in I.T.A.No.483/2009 on 29/03/2012 declining to condone the delay of 1270 days is correct or sustainable ? 2. The petitioner seeks to set aside the said order and to direct the Tribunal to consider the matter on merits. 3. Heard the learned Standing Counsel appearing on behalf of the respondent as well. 4. Going by the materials on record, it is seen that the petitioner had earlier approached this Court by filing W.P.(C) No.16414/2010, wherein the challenge was in respect of the correctness and sustainability of Ext.P2 notice demanding a sum of RS. 3,51,794/- for the assessment year 1999-2000 and Rs.3,855/- in respect of the assessment year 2005-06. After considering the merits, this Court WPC.No.14204/2012 2 observed that, there was no case for the petitioner that the petitioner had challenged the fixation of the liability after the disposal of the statutory appeal on 21/12/2006 by resorting to any procedure known to law and this being the position, the challenge raised against Ext.P2 demand notice was held as not liable to be entertained. It was accordingly, that the writ petition was dismissed on merits. 5. The pleadings and proceedings reveal that the petitioner approached the Tribunal by filing a second appeal along with a petition to condone the delay of 1270 days, after suffering the judgment by way of Ext.P5. Obviously, the petitioner approached this Court without availing the statutory remedy, seeking for interference on merits. It was after considering the merits involved, that the decision was rendered, declining interference and dismissing the writ petition. After the dismissal of the writ petition as above, it was never open for the petitioner to have approached the Tribunal i.e. the statutory authority for availing any statutory remedy, he having already chosen to invoke the discretionary jurisdiction of this Court (instead of the statutory remedy) under Article 226 of the Constitution. No right to invoke the WPC.No.14204/2012 3 statutory remedy was reserved in Ext.P5, while dismissing the writ petition. In the said circumstances, no proceeding filed before the Tribunal was liable to be acted upon and the Tribunal has rightly dismissed the petition to condone the delay as per Ext.P6. No interference is warranted and the writ petition is dismissed accordingly. P.R.RAMACHANDRA MENON JUDGE sv. WPC.No.14204/2012 4 "