C.P.ABDUL NIZAR V. THE INCOME TAX OFFICER AND OTHERS

WP(C)/6096/2011

AI Insights

The case involves C.P. Abdul Nizar, the proprietor of New Gulf Mobile Super Bazar, who filed a writ petition against the Income Tax Department officials, including the Income Tax Officer, Deputy Commissioner of Income Tax, and Commissioner of Income Tax (Appeals). The petitioner challenged the initiation of revenue recovery actions for tax arrears for the assessment year 2008-2009. The petitioner argued that he was unable to respond to notices due to his accountant's leave and his own trip to China, leading to a default in receiving communications and subsequently missing the deadline for filing an appeal against the assessment order. The court's interim order had temporarily halted the recovery actions, but ultimately, the petition was closed due to the absence of the petitioner's representation at the hearing.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 755796 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 25-02-2014
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: UNISE KUNJU; SAKIR
• Keywords: Adjournment; Appeal; Assessment Order; CASS; Coercive Steps; Demand notice; Income tax assessment; Non-appearance; Revenue recovery; Scrutiny; Show cause notice; Tax arrears
• Section: 144; 143(2); 271(1)(c); 271(1)(b)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 25TH DAY OF FEBRUARY 2014/6TH PHALGUNA, 1935 WP(C).No. 6096 of 2011 (J) ------------------------------------- PETITIONER: ------------------- C.P.ABDUL NIZAR, S/O.MUHAMMED, AGED 50 YEARS, RESIDING AT PAUL ABROW RDS, FLAT NO.7B, KACHERIPADY, ERNAKULAM, KOCHI-18, PROPRIETOR, NEW GULF MOBILE SUPER BAZAR, GROUND FLOOR, G.C.D.A.COMPLEX, MARINE DRIVE, KOCHI – 31, ERNAKULAM DISTRICT. BY ADVS.SRI.UNISE MOHAMED KUNJU, SRI.SAKIR.K.H.. RESPONDENTS: ----------------------- 1. THE INCOME TAX OFFICER, WARD 2(2), ERNAKULAM, KOCHI - 18. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(1), ERNAKULAM, KOCHI - 18. 3. THE COMMISSIONER OF INCOME TAX (APPEALS), OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI – 18. BY SRI.JOSE JOSEPH, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C).NO.6096/2011-J: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1 : TRUE COPY OF THE NOTICE DTD. 31/08/2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P.2 : TRUE COPY OF THE WRITTEN REQUEST DTD. 25/09/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P.3 : TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE PETITIONER. EXT.P.4 : TRUE COPY OF ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2008-09 DTD. NIL. ALONG WITH THE SHOW CAUSE NOTICE DTD. 30/11/2010 ISSUED BY THE 2ND RESPONDENT. EXT.P.5 : TRUE COPY OF THE ENVELOP CONTAINED EXHIBIT P4 ASSESSMENT ORDER AND THE NOTICE TO SHOW CAUSE DTD. 30/11/2010. EXT.P.6 : TRUE COPY OF THE REQUEST DTD. 16/02/2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. A.V.RAMAKRISHNA PILLAI, J --------------------------------------------- W.P.(C) No.6096 of 2011 --------------------------------------------- Dated this the 25th day of February, 2014 JUDGMENT Alleging that coercive steps including revenue recovery action was going to be initiated by the respondents against the petitioner for the recovery of tax arrears for the assessment year 2008-2009, the petitioner has come up before this Court. 2. The petitioner is doing the business of mobile phones and its accessories under the name and style of M/s New Gulf Mobile Super Bazar at GCDA Complex, Kochi. According to the petitioner, the first respondent completed the assessment with regard to the said firm of the petitioner for the assessment year 2008-2009. 3. The petitioner alleges that as the case of the petitioner was selected for scrutiny in CASS, the first respondent issued Ext.P1 notice dated 31.8.2009 under WPC No.6096/2011 2 Section 143(2) of the Income Tax Act to the petitioner requesting to appear on 28.9.2009 for producing the information and documents. 4. The petitioner further alleges that as the accountant of the petitioner has gone on leave for C.A. examination on 25.9.2009, he submitted Ext.P2 written request for an adjournment and the same was allowed. 5. He would further alleges that in order to study the scope of new developments and chances in the trading of mobile phone, he has gone to China during the year 2009-2010 and therefore, he could not appear before the second respondent at the time when he was called to appear. On account of that, it ended in not receiving notices from the second respondent. Therefore, the second respondent completed the assessment for the year 2008-2009 and passed Ext.P4 judgment/ assessment order in accordance with Section 144 of the Income Tax Act directing to remit the sales tax, i.e. `8,50,360/-. Along with that, the petitioner was served with the demand notice and notice to show cause why penalty under S.271(1)(b) and S.271(1)(c) of the Income WPC No.6096/2011 3 Tax Act, 1961 shall not be imposed. The date fixed for appearance was 28.12.2010. According to the petitioner, all those communications were received by the petitioner only on 24.1.2011 as evidenced from Ext.P5 envelop and therefore, the petitioner could not go for showing the reasons. 6. The petitioner further alleges that in order to prepare an appeal for obtaining the certified copy of the detailed questionnaire dated 6.1.2010 issued by the second respondent and all the notices stated to be issued, he submitted Ext.P6 request dated 16.2.2011 before the second respondent. However, he was informed by the office of the second respondent that as the time for filing the appeal has already been elapsed, coercive steps including revenue recovery steps are going to be initiated against the petitioner. Thus, he has come up before this Court. 7. This Court, as per interim order dated 9.3.2011, directed that the recovery of the amount covered under the assessment order shall be kept in abeyance till instructions are received from the respondents. WPC No.6096/2011 4 As it appears from record that the limited purpose of filing this writ petition was to get a breathing time to prefer an appeal against the assessment order, this Court is of the definite view that there is no necessity of keeping this writ petition pending, especially, in the light of the fact that there was no representation for the petitioner when the mater was called up. Therefore, this writ petition is closed, without examining the merits. sd/- A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE "