K.A.RAUF V. THE ASST COMMISSIONER OF INCOME TAX ,

WP(C)/19803/2022

AI Insights

K.A. Rauf filed writ petitions against the assessment orders issued by the Income Tax Department for three consecutive years. The assessments were initially set aside by the first appellate authority but were later remanded for fresh consideration by the Tribunal. The main contention in the writ petitions was the failure of the Assessing Authority to provide an effective opportunity for cross-examination of a witness, as mandated by a prior judgment of the High Court. The Department argued that the petitions were filed belatedly and that the petitioner had been given adequate opportunities during the assessment proceedings. The court, considering the delay in filing the writ petitions and the procedural history, dismissed the petitions, allowing the petitioner to seek relief through the appellate process.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 751318 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 22-06-2022
• Assessment Year: misc
• Other Referred Cases: W.P.(C)No.25978 of 2020
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: HARISANKAR MENON; MEERA MENON; K KRISHNA SREEJITH
• Keywords: Assessment Order; Cross Examination; Cross-examination; Income tax assessment; Remand
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22ND DAY OF JUNE 2022 / 1ST ASHADHA, 1944 WP(C) NO. 19910 OF 2022 PETITIONER: K.A.RAUF, AGED 64 YEARS, \"SHELTER\", JAYANTHI NAGAR HOUSING COLONY, P.T. USHA ROAD, KOZHIKODE - 673 032. BY ADVS. HARISANKAR V. MENON MEERA V.MENON K.KRISHNA R.SREEJITH RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), KOZHIKODE - 673 001. 2 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1 (1), AYAKAR BHAVAN, KOZHIKODE - 673 001. 3 THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KOZHIKODE - 673 001. 4 THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 2, KOZHIKODE - 673 001. BY SRI. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, ALONG WITH WP(C).19803/2022, 19804/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22ND DAY OF JUNE 2022 / 1ST ASHADHA, 1944 WP(C) NO. 19803 OF 2022 PETITIONER: K.A.RAUF AGED 64 YEARS \"SHELTER\", JAYANTHI NAGAR HOUSING COLONY, P.T.USHA ROAD, KOZHIKODE - 673 032. BY ADVS. HARISANKAR V. MENON MEERA V.MENON RESPONDENTS: 1 THE ASST COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK),KOZHIKODE - 673 001. 2 THE ASST. COMMISSIONER OF INCOME TAX CIRCLE 1(1), AYAKAR BHAVAN, KOZHIKODE - 673 001. 3 THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KOZHIKODE - 673 001. 4 THE DY.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2, KOZHIKODE - 673 001. BY SRI. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, ALONG WITH WP(C).19910/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22ND DAY OF JUNE 2022 / 1ST ASHADHA, 1944 WP(C) NO. 19804 OF 2022 PETITIONER: K A RAUF, AGED 64 YEARS, \"SHELTER\", JAYANTHI NAGAR HOUSING COLONY, P.T. USHA ROAD, KOZHIKODE- 673 032. BY ADVS. HARISANKAR V. MENON MEERA V.MENON RESPONDENTS: 1 THE ASST.COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), KOZHIKODE - 673 001. 2 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1 (1), AYAKAR BHAVAN, KOZHIKODE - 673 001. 3 THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KOZHIKODE - 673 001. 4 THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 2, KOZHIKODE - 673 001. BY SRI. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2022, ALONG WITH WP(C).19910/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 4 JUDGMENT [WP(C) Nos.19910/2022, 19803/2022, 19804/2022] These three writ petitions are filed challenging orders of assessment in respect of three assessment years namely, 2007-2008, 2008-2009 and 2009-2010. It appears that the petitioner suffered earlier orders of assessment, which were challenged by the petitioner before the first appellate authority. The first appellate authority had allowed the appeals and had granted relief to the petitioner by setting aside the additions made in the orders of assessment in respect of the aforesaid years. The Revenue carried the matter in appeal to the Tribunal and the Tribunal remanded the matter for the fresh consideration of the Assessing Authority. The Assessing Authority proceeded to pass assessment orders following the remand without affording an opportunity of cross examination of a particular witness to the petitioner. This was challenged before this Court and this court through judgment dated 25.11.2020 in W.P.(C)No.25978 of 2020 found that the failure to provide an opportunity to cross examine the witness vitiates the proceedings and set aside the assessment orders and remanded the matter to the WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 5 assessing authority for fresh consideration after affording an opportunity of cross examination to the petitioner. At this point it must be noted that the order of the Tribunal remanding the matter to the Assessing Authority had been challenged before this Court by the petitioner by filing ITA No.55 of 2018 and connected cases. Those income tax appeals have now been rejected by order dated 10.03.2022 upholding the order of the Tribunal. The grievance of the petitioner projected in these writ petitions is that the order passed by the Assessing Authority following the judgment of this Court in W.P.(C)No.25978 of 2020 was again without affording an opportunity of cross examination to the petitioner. 2. The learned counsel appearing for the petitioner vehemently contends that merely because this Court had set a time limit to dispose of the matter while rendering the judgment in W.P.(C)No.25978 of 2020, is no reason for the assessing authority to hold that an effective opportunity of cross examination need not be extended to the petitioner. It is submitted that the orders of assessment which are now impugned in these writ petitions would clearly show that the WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 6 petitioner had co-operated with the assessment in every manner possible and it is only on account of the failure of the witness in question to appear before the assessing authority that the petitioner was forced to request for adjournment to exercise his right to cross examination. It is submitted that certain details sought for by the petitioner from the Assessing Authority were also provided only the day prior to the date fixed for cross examination. It is submitted that these matters cumulatively show that an effective opportunity was not given to the petitioner and therefore, the assessment orders in respect of the assessment years mentioned above must be set aside and the petitioner must be afforded a fresh opportunity to cross examine the witnesses and produce such materials that may be necessary before the assessing officer. 3. The learned Standing Counsel for the Department points out that the assessment orders impugned in these writ petitions have been issued as early as on 05.03.2021. It is submitted that these writ petitions cannot be considered on account of the fact that the challenge to the assessment orders are made belatedly and only in the month of June 2022. It is submitted that the petitioner has an effective WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 7 alternative remedy of appeal and there is no reason for this court to examine the question as to whether the petitioner was afforded a proper opportunity before the assessing officer. It is submitted that the communications exchanged between the assessing officer and the petitioner will clearly show that the assessing officer had extended every possible opportunity to the petitioner. 4. The learned counsel appearing for the petitioner in reply contends that the officer had waited till the last possible moment to initiate proceedings following the judgment of this Court in W.P.(C)No.25978 of 2020. It is pointed out that though the said judgment was delivered on 25.11.2020, the officer issued the first notice following the judgment only in the month of February 2021 and he proceeded to complete the assessment hurriedly stating that the time limit fixed by this Court for completing the assessment expires on 07.03.2021. 5. Having heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Department, I am of the view that there is merit in the contention taken by the learned Standing Counsel for the WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 8 Department that this court should not interfere with the assessment orders in question on account of the fact that the challenge to the same is made belatedly and almost after one year and three months after those assessment orders are passed. 6. Without expressing any opinion on the merits of the contentions raised by the learned counsel for the petitioner, I deem it appropriate to decline relief in these writ petitions making it clear that the petitioner may file appeals against the assessment orders in question also raising the contention that the assessing officer failed to give an effective opportunity to the petitioner to cross examine the witnesses as directed by this Court in the judgment in W.P. (C)No.25978 of 2020. With the above observation, these writ petitions will stand dismissed. Sd/- GOPINATH P. JUDGE DK WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 9 APPENDIX OF WP(C) 19803/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2009-10. Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. Exhibit P3 COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI. Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. Exhibit P5 COPY OF JUDGMENT IN WP(C) NO.25978/2020 OF THIS HON'BLE COURT. Exhibit P6 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. Exhibit P7 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P8 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. Exhibit P9 COPY OF LETTER FILED BY PETITIONER'S COUNSEL. Exhibit P10 COPY OF LETTER ISSUED BY 4TH RESPONDENT. Exhibit P11 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P12 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 10 Exhibit P13 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P14 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. Exhibit P15 COPY OF ORDER ISSUED BY THE 4TH RESPONDENT. WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 11 APPENDIX OF WP(C) 19804/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE 2008-09. Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. Exhibit P3 COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI. Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. Exhibit P5 COPY OF JUDGMENT IN WP (C) NO. 25978/2020 OF THIS HON'BLE COURT. Exhibit P6 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. Exhibit P7 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P8 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. Exhibit P9 COPY OF LETTER FILED BY PETITIONER'S COUNSEL. Exhibit P10 COPY OF LETTER ISSUED BY 4TH RESPONDENT Exhibit P11 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P12 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 12 Exhibit P13 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P14 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. Exhibit P15 COPY OF ORDER ISSUED BY THE 4TH RESPONDENT . WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 13 APPENDIX OF WP(C) 19910/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI Exhibit P3 COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT Exhibit P5 COPY OF JUDGMENT IN WP (C) NO. 25978/2020 OF THIS HON'BLE COURT Exhibit P6 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT Exhibit P7 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT Exhibit P8 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT Exhibit P9 COPY OF LETTER FILED BY PETITIONER'S COUNSEL Exhibit P10 COPY OF LETTER ISSUED BY 4TH RESPONDENT Exhibit P11 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT Exhibit P12 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT WP(C) Nos.19910/2022, 19803/2022 & 19804/2022 14 Exhibit P13 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT Exhibit P14 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT Exhibit P15 COPY OF ORDER ISSUED BY THE 4TH RESPONDENT "