ERASSERIL PETER BENNAN V. INCOME TAX OFFICER,

WP(C)/1152/2020

AI Insights

In this writ petition, the petitioner, Erasseril Peter Bennan, challenged the assessment order issued by the Income Tax Officer during the demonetization period, which questioned the source of certain fixed deposits. The petitioner had initially provided explanations (Ext.P-1 and Ext.P-1(a)) regarding these deposits. However, the explanation relied upon by the Income Tax Officer in the assessment order (Ext.P-2) was later withdrawn by the petitioner. The main legal contention was that the assessment order was based on a non-existent explanation, leading to an unreasonable and illegal decision-making process. The court heard arguments from both sides and found merit in the petitioner's complaint, leading to the setting aside of the assessment order and remitting the matter back for fresh consideration.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 754279 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 23-01-2020
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: A KRISHNAN; R UMASANKAR
• Keywords: Assessment Order; Demonetization; Fixed deposits; Writ of Certiorari; Writ of Mandamus
• Section: 226

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941 WP(C).No.1152 OF 2020(T) PETITIONER: ERASSERIL PETER BENNAN ERASSERIL HOUSE, NO.17/1095B, MUNDAMVELI, KOCHI-682507. BY ADVS. SRI.A.KRISHNAN SRI.R.UMASANKAR RESPONDENTS: 1 INCOME TAX OFFICER, WARD NO - INTERNATIONAL TAX, OFFICE OF THE INCOME TAX OFFICER, CENTRAL REVENUE BUILDING, IS PRESS ROAD, ERNAKULAM-682018. 2 COMMISSIONER OF INCOME TAX, OFFICE OF COMMISSIONER OF INCOME TAX, 6TH FLOOR, KANDAMKULATHY TOWER, M G ROAD, KARIKKAMURI, SHENOYS, KOCHI, KERALA-682011. SRI.CHRISTOPHER ABRAHAM , SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.1152 OF 2020(T) 2 ALEXANDER THOMAS, J. =========================== W.P(C) No.1152 of 2020 =========================== Dated this the 23rd day of January, 2020 JUDGMENT The prayers in this Writ Petition (Civil) are as follows: “1. Through issuing a writ of certiorai or any other appropriate writ, Order or direction, call for the records pertaining to Ext.P2 Assessment Order and quash Ext.P2 Assessment Order passed by the 1st respondent. 2. Through issuing a writ of Mandamus or any other appropriate writ, Order or direction, command the 1st respondent to reconsider the issue afresh in the light of the Ext.P1 and Ext.P1(a) Replies submitted by the petitioner. 3. Such other appropriate writ, order of direction as this Hon'ble Court may deem fit and proper to grant as to the nature of the case.” 2. Heard Sri.A.Krishnan, learned counsel appearing for the petitioner and Sri.Christopher Abraham, learned Standing Counsel appearing for the Income Tax Department, Government of India appearing for the respondents. 3. It appears that the 1st respondent has issued notice dated 19.12.2017 directing the petitioner to offer explanation regarding the source of the fixed deposits mentioned therein during the WP(C).No.1152 OF 2020(T) 3 demonetization period. The petitioner thereupon has filed Ext.P-1 reply dated 19.09.2019. Thereafter, the petitioner has filed yet an yet another reply on 19.09.2019, before the 1st respondent. Immediately thereafter the petitioner sought permission and has withdrawn the said explanation/reply given by him on 31.12.2019 and filed Ext.P-1(a) reply dated 30.12.2019 before the 1st respondent in the matter. The complaint of the petitioner is that the 1st respondent has now passed Ext.P-2 assessment order dated 31.12.2019, by relying on the said explanation dated 30.12.2019, which was actually withdrawn the petitioner and it is was therefore, non-existing material. 4. After hearing both sides it is seen that the said factual contention raised by the petitioner appears to be correct and tenable. Indeed it appears that the 1st respondent has proceeded to place reliance on the explanation said to have been given by the petitioner on 30.12.2019, which is in fact immediately withdrawn by him and in its place, he has filed Ext.P-1 reply dated 30.12.2019. Therefore, the impugned decision making process, which led to Ext.P-2 assessment order may place reliance on in all existing materials, he has indeed unreasonable and illegal. WP(C).No.1152 OF 2020(T) 4 5. Without getting into the merits of the controversy in any manner, it is ordered that Ext.P-2 would require interdiction even though otherwise, it is amenable to appellate challenge as per the provisions contained in the IT Act. Hence, notwithstanding the availability of statutory remedy, this Court is of the view that this is a fit case therein, the discretion of Article 226 of the Constitution of India would be exercised. In that view of the matter, it is ordered that the impugned Ext.P-2 order will stand set aside and the assessment in relation thereto, will stand remitted to the 1st respondent for decision and consideration afresh. The 1st respondent may afford a reasonable opportunity of being heard to the petitioner and permit him to file any additional written submissions in the matter and after taking into consideration all aspects of the matter to which the petitioner has been given opportunity to respond, may take a considered decision thereon, in accordance with law, without much delay. WP(C).No.1152 OF 2020(T) 5 With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. Sd/- ALEXANDER THOMAS JUDGE vgd WP(C).No.1152 OF 2020(T) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE REPLY DATED 19.9.2019 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P1(A) TRUE COPY OF THE REPLY DATED 30.12.2019 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF ASSESSMENT ORDER DATED 31.12.2019. "