JOSHI P.MATHEW V. THE DEPUTY COMMISSIONER OF INCOME TAX

WP(C)/34655/2011

AI Insights

The case involves Joshi P. Mathew, the petitioner, who contested the legality of a search conducted under Section 132 of the Income-tax Act, which led to assessment orders for several years under Section 153A. The petitioner argued that the search was illegal, and thus, the subsequent assessments were without jurisdiction. He sought to cross-examine the authorized officer and raised objections to an enhancement of assessment by the appellate authority. The High Court's decision focused on ensuring that the petitioner's concerns regarding the legality of the search and the opportunity for cross-examination were adequately addressed by the appellate authority.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 699966 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 25-01-2012
• Assessment Year: misc
• Other Referred Cases: W.P. (C) No. 12368 of 2011
• Laws Referred To: Income-tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: E K NANDAKUMAR; M GOPIKRISHNAN NAMBIAR; P GOPINATH MENON; P BENNY THOMAS; K MATHAI; RAMESH JOHN
• Keywords: Appellate Authority; Assessment proceedings; Cross Examination; Cross-examination; Illegal search; Jurisdiction
• Section: 132; 153A

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933 WPC.No. 34655 of 2011 (F) ------------------------- PETITIONER: ----------- JOSHI P.MATHEW, PANTHAMPLACKAL HOUSE, KIZHAKKAMBALAM, ERNAKULAM. BY ADVS.SRI.E.K.NANDAKUMAR SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH MENON SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.RAMESH CHERIAN JOHN RESPONDENTS: ------------ 1. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE - I, ERNAKULAM (A.O) - 682 013. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), SANJUVAN TOWERS, OLD RAILWAY STATION ROAD ERNAKULAM - 682018. 3. THE DEPUTY COMMISSIONER OF INCOME TAX (INV.) PALAKKAD - 678 014. SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DCS WPC.No. 34655 of 2011 (F) ------------------------------ APPENDIX PETITIONER(S) EXHIBITS : EXT. P1 : COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2002-03, DATED 28.12.2009 EXT. P2 : COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2003-04, DATED 28.12.2009 EXT. P3 : COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2004-05, DATED 28.12.2009 EXT. P4 : COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2005-06, DATED 28.12.2009 EXT. P5 : COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2006-07, DATED 28.12.2009 EXT. P6 : COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08, DATED 28.12.2009 EXT. P7 : COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, FOR THE YEAR 2002-03, DATED 1.2.2010 EXT. P8 : COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, FOR THE YEAR 2003-04, DATED 1.2.2010 EXT. P9 : COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, FOR THE YEAR 2004-05, DATED 1.2.2010 EXT. P10 : COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, FOR THE YEAR 2005-06, DATED 1.2.2010 EXT. P11 : COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, FOR THE YEAR 2006-07, DATED 1.2.2010 EXT. P12 : COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, FOR THE YEAR 2007-08, DATED 1.2.2010 (CONT..) DCS WPC.No. 34655 of 2011 (F) ------------------------------ EXT. P13 : COPY OF THE ARGUMENT NOTES DATED 13.12.2010 EXT. P14 : COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT DATED 9.3.2011 EXT. P15 : COPY OF THE JUDGEMENT IN WRIT PETITION (CIVIL) NO.12368 OF 2011 DATED 12.04.2011 EXT. P16 : COPY OF REMAND REPORT DATED 6.7.2011 SUBMITTED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT. P17 : COPY OF THE DETAILED OBJECTIONS DATED 26.7.2011 PREFERRED BY THE PETITIONER , TO THE CONTENTS OF EXHIBITS P16 REMAND REPORT. EXT. P18 : COPY OF THE LETTER SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 17.9.2011 EXT. P19 : COPY OF THE ORDER OF THIS HON'BLE COURT IN W.P. (C) NO. 12368 OF 2011 DATED 19.11.2011. EXT. P20 : COPY OF THE LETTER DATED 25.11.2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXT. P21 : COPY OF THE LETTER DATED 25.11.2011 ISSUED BY THE 2ND RESPONDENT, DATED 2.12.2011 EXT. P22 : COPY OF THE LETTER GIVEN ON BEHALF OF THE PETITIONER TO THE 2ND RESPONDENT DATED 19.12.2011 EXT. P23 : COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DATED 20.12.2011 EXT. P24 : COPY OF THE LETTER SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 21.12.2011 RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P A TO JUDGE DCS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 34655 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 25th day of January, 2012. J U D G M E N T Pursuant to a search conducted under Section 132 of the Income-tax Act, proceedings for assessment of the petitioner's income under Section 153A of the Income-tax Act were initiated, which resulted in Exts. P1 to P6 assessment orders. Against the same, the petitioner has filed Exts. P7 to P12 appeals. In the appeals, the petitioner raised a specific contention that since the search itself was illegal, the assessing authority has no jurisdiction to initiate assessment proceedings pursuant to that search. The petitioner has also adduced evidence in the form of affidavits of panchas and has sought an opportunity to cross examine the authorised officer of the Department to substantiate his contention regarding the illegality of the search. The petitioner apprehends that the appellate authority would dispose of the appeals denying the petitioner such an opportunity. The petitioner has got another case that proceedings have been initiated by Ext.P23 by the appellate authority for enhancing the assessment without giving sufficient opportunity to the petitioner to file objections to the same. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “i. call for the records leading to Ext.P23 notice issued by the 2nd respondent and quash the same by the issuance of a writ of certiorari or such other writ, order or direction; ii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to afford W.P(C) No. 34655 of 2011 -: 2 :- the petitioner an opportunity to cross-examine the witnesses for the purpose of substantiating his contentions regarding the legality of the search and also for the purpose of putting forth its objections to the proposal for enhancement of tax, prior to adjudication of the appeals Exts. P7 to P12. iii. To grant a stay of all further proceedings, for hearing and disposing of Exts. P7 to P12 appeals by the 2nd respondent, pending disposal of the writ petition.” 2. As far as the relief in respect of Ext.P23 is concerned, pursuant to interim orders passed in this case, the petitioner has admittedly been given sufficient opportunity to file objections, and he has filed the same also. Therefore, no further orders are necessary in respect thereof. 3. As far as the other prayers are concerned, I am of opinion that the appellate authority is bound to consider all the contentions of the petitioner including the question as to whether the search is valid and whether the assessing authority had jurisdiction to initiate proceedings under Section 153A on the basis of that search, if the same is invalid. The appellate authority is also bound to consider the request of the petitioner for cross examining the authorised officer of the Department in accordance with the provions of law applicable. Accordingly, this writ petition is disposed of with a direction to the 2nd respondent-appellate authority to consider all the contentions of the petitioner including the contention regarding the validity of the search and W.P(C) No. 34655 of 2011 -: 3 :- consequent lack of jurisdiction. The appellate authority shall also consider the request of the petitioner for opportunity to cross examine the authorised officer of the Department in accordance with the applicable provisions. Sd/- S. Siri Jagan, Judge. Tds/ "