GIJO POOTHANAPRA MATHEWS, V. UNION OF INDIA,

WA/504/2020

AI Insights

The case involves a Writ Appeal by Gijo Poothanapra Mathews against the judgment of a Single Judge, which dismissed his Writ Petition challenging an assessment order for the year 2017-18. The assessment was contested on grounds including the expiry of the statutory limitation period and lack of personal hearing. The Single Judge had directed that these issues be raised in a statutory appeal. The Writ Appeal was heard by a Division Bench, which agreed with the Single Judge's decision to relegate the appellant to the statutory appellate remedy but provided interim relief concerning the operation of the appellant's bank accounts pending the outcome of the appeal.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 742008 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 23-03-2020
• Assessment Year: misc
• Laws Referred To: Income-tax Act, Article 226 of the Constitution of India
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: P VIJAYAKUMAR; P K MENON; JOSE JOSEPH
• Assessee Lawyers: M NAMBIAR; K MATHAI; JOSON MANAVALAN; KURYAN THOMAS; PAULOSE ABRAHAM; RAJAKANNAN; E K NANDAKUMAR
• Keywords: Assessment Order; Bank account freeze; Coercive Recovery; Limitation Period; Personal hearing; Statutory Appeal; Writ Appeal
• Section: 144

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE T.R.RAVI MONDAY, THE 23RD DAY OF MARCH 2020 / 3RD CHAITHRA, 1942 WA.No.504 OF 2020 AGAINST THE JUDGMENT IN WP(C)3847/2020(E) OF HIGH COURT OF KERALA APPELLANT/PETITIONER IN WPC: GIJO POOTHANAPRA MATHEWS, AGED 36 YEARS DAMS, 62/2727, RVD TOWER, RAMANKUTTY ACHAN ROAD, ERNAKULAM, KERALA -682016. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN SRI.E.K.NANDAKUMAR (SR.) RESPONDENTS/RESPONDENTS IN WPC: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI - 110 001. 2 INCOME TAX OFFICER, WARD-2, KOTTAYAM, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM -686 001. 3 THE JOINT COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM - 686 001. R1 BY SRI.P.VIJAYAKUMAR, ASGI, R2-3 BY ADV. SRI.P.K.RAVINDRANATHA MENON (SR.) R2-3 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.504 of 2020 -2- C.K.ABDUL REHIM & T.R. RAVI,JJ. ------------------------------------------------ W.A.No.504 of 2020 -------------------------------------------------- Dated this the 23rd day of March, 2020 JUDGMENT C.K.ABDUL REHIM, J. The above Writ Appeal is instituted by the petitioner in W.P.(C)No.3847/2020 challenging judgment of the Single Judge, dated 11.02.2020. The respondents herein are the respondents in the Writ Petition. 2. Ext.P9 order of assessment against the appellant finalised by the 2nd respondent with respect to the assessment year 2017-18 was under challenge in the Writ Petition. This court was approached without availing the remedy of statutory appeal available before the Commissioner of Income-tax (Appeals), by contending that the assessment was finalised after expiry of the period of limitation stipulated in the W.A.No.504 of 2020 -3- Income-tax Act. Inter alia, it was contended that, while finalising the assessment under Section 144 of the Income-tax Act, no opportunity of personal hearing was afforded, apart from issuing specific show cause notice. Before the learned Single Judge, the respondents contended that all the above points can be agitated in a properly constituted appeal before the Appellate Authority and that there exists no exceptional circumstances warranting interference by this court under Article 226 of the Constitution of India. The Single Judge, after considering all the rival contentions, observed that there is no material available to arrive at a conclusion that the assessee had submitted returns as well as given proper reply to the notice, as contended. However, it was observed that, all such disputed points can very well be urged in a statutory appeal. Therefore the Writ Petition was dismissed. It is challenging judgment of the learned Single Judge, the above Writ Appeal is filed. 3. The appellant contended that the impugned assessment is unsustainable, because it was not W.A.No.504 of 2020 -4- communicated within the time limit stipulated. Before this court, the respondents had produced certain additional documents in support of their contention that the assessment was actually finalised within the time limit stipulated and it was uploaded in the system. The appellant is disputing even such a contention. Under the above mentioned circumstances, we are of the opinion that the ground raised for assailing the assessment, based on the question of limitation can also be agitated before the Appellate Authority. This is especially because, in order to arrive at a conclusion on the disputed factual aspects relating to the said ground, an evaluation of materials and evidence may become absolutely necessary. Therefore we are of the opinion that, interference with the judgment of the Single Judge, relegating the appellant to the appellate remedy, cannot in any manner be termed as illegal, erroneous or improper. 4. Learned counsel appearing for the appellant had pointed out that, the respondents had already initiated coercive steps of recovery and Bank accounts of the appellant W.A.No.504 of 2020 -5- stands freezed. This, according to the appellant, is putting them to heavy prejudices to the extent that they cannot transact any normal business activities. Per contra, learned Standing Counsel pointed out that, the total liability will come to more than Rs.2.67 crores, and even according to the appellant the amount remaining credit in the bank account will only be about 2.35 lakhs. Hence granting of any relief to the extent of permitting operation of the Bank account is opposed. 5. Having considered the factual circumstances, we are of the opinion that an equitable relief to the extent of permitting operation of the Bank accounts can be allowed, till the Appellate Authority considers and passes appropriate orders in any stay petition which may be filed along with statutory appeal. We are of the opinion that this can be granted subject to further direction to the Banks to keep in deposit the amount which are now remaining in credit of the assessee. 6. Hence the above Writ Appeal is hereby disposed of to the extent of modifying the impugned judgment to the W.A.No.504 of 2020 -6- following extent:- (i) If the appellant files any statutory appeal accompanied by an interim application seeking stay of recovery of the amounts in dispute, if necessary along with application for condonation of delay, within a period of one week from today, the Appellate Authority [Commissioner of Income-tax (Appeals)] shall consider and pass appropriate orders on the stay petition at the earliest possible, at any rate, within a period of two weeks from the date of receipt of the appeal and stay petition, provided the appeal is admitted. (ii) Till such time, the Appellate Authority passes orders on the stay petition as directed above, further coercive steps of recovery shall be kept in abeyance by the respondents, subject to condition that, all the Banks to whom the orders of attachment were already issued shall not permit withdrawal of the amount to the extent which are lying credit in favour of the appellant as on today. It means, the appellant can be permitted to operate such accounts on a regular basis without withdrawing the money remaining in credit to the extent available as on today. W.A.No.504 of 2020 -7- (iii) The above arrangement will be subject to orders which will be passed by the Appellate Authority in the stay petition. Sd/- C.K.ABDUL REHIM JUDGE Sd/- T.R. RAVI JUDGE dsn W.A.No.504 of 2020 -8- APPENDIX APPELLANT'S ANNEXURES: NIL RESPONDENTS' ANNEXURES: ANNEXURE R2(A): TRUE COPY OF SCREENSHOTS OF THE E-PROCEEDINGS. ANNEXURE R2(B): TRUE COPY OF THE DIGITALLY SIGNED ASSESSMENT ORDER. ANNEXURE R2(C): TRUE COPY OF THE STATEMENT OF THE CASE. ANNEXURE R2(D): TRUE COPY OF THE PARAWISE REMARKS. ANNEXURE R2(E): TRUE COPY OF NOTIFICATION No.4/2017 DT.30.4.2017. "