K.ASOKAN V. THE CHIEF INCOME TAX OFFICER

WP(C)/12706/2005

AI Insights

The petitioner, K. Asokan, challenged a notice (Ext.P4) issued by the second respondent for the recovery of tax due under the Income Tax Act for the assessment year 1999-2000. The petitioner argued that the notice was issued despite an appellate order (Ext.P13) that partly allowed his appeal against the original assessment order (Ext.P12). Additionally, the petitioner claimed that the third respondent, who was his Power of Attorney, had committed fraud by executing a sale deed of the hotel in his own favor and transferring the FL-3 license, actions which were under challenge in a civil suit. The court found that the notice was issued without considering the appellate order and thus could not be enforced as it stood.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 755867 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 09-01-2013
• Assessment Year: misc
• Other Referred Cases: W.A. 580/03, OP 36346/02, WPC No.12975/2002, RP No. 175/2005, WPC No.16164/2003, WA No.2092/2005, WPC No.5015/2008
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; C C THOMAS; M G KARTHIKEYAN; NIREESH MATHEW
• Assessee Lawyers: N DHARMADAN; M R SABU
• Keywords: Appellate order; Assessment Order; Fraud; Power of attorney; Tax Recovery
• Section: 226

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH DAY OF JANUARY 2013/19TH POUSHA 1934 WP(C).No. 12706 of 2005 (K) --------------------------- PETITIONER: ----------- K.ASOKAN,AERAL VEEDU, PRALAYAGIRI THOKKAD P.O., VARKALA. BY ADV.SRI.N.DHARMADAN (SR.) SRI.M.R.SABU RESPONDENTS ----------- 1. THE CHIEF INCOME TAX OFFICER OFFICE OF THE INCOME TAX AYAKAR BHAVAN, KAWADIAR THIRUVANANTHAPURAM. 2. THE TAX RECOVERY OFFICER, INCOME TAX DEPARTMENT USHUS COMPLEX, VADAYATTUKOTTA, KOLLAM 691 001. 3. SRI.VANCHU KAMAL, MANJU BHAVAN, KADAKKAL VILLAGE, KADAKKALP.O., KOLLAM DIST. R1,2 BY SRI.JOSE JOSEPH SC, IT R3 BY ADVS.SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 12706 of 2005 (K) --------------------------- APPENDIX ---------- PETITIONER'S EXHIBITS ---------------------- EXT.P1. COPY OF POWER OF ATTORNEY DT. 23.3.1999 EXT.P2. COPY OF TRANSFER ORDER NO.XC7-11345/00/R.DIS DATED 16.6.2000 BY ASST. EXCISE COMMISSIONER. EXT.P3. COPY JUDGMENT IN W.A. 580/03 DT. 11.10.04. EXT.P4. COPY OF NOTICE NO.TR 1065/03 DT. 25.2.05 BY THE 2ND RESPONDENT. EXT.P5. COPY OF PETITION DT. 12.3.05 BY PETITIONER. EXT.P6 . COPY OF APPLICATION DT. NIL BY PETITIONER TO 2ND RESPONDENT. EXT.P7. COPY OF PETITION DT. 14.3.05 FILED THE PETITIONER. EXT.P8. COPY OF ENVELOP DT. 25.2.2005 BY 2ND RESPONDENT. EXT.P9. COPY OF ORDER IN R.P.761/2008 IN WPC. 12706/2005 DT. 21.7.2008 OF THIS HON'BLE COURT. EXT.P10. COPY OF JUDGMENT IN WPC NO.12975/2002 DT. 7.2.2003 OF THIS HON'BLE COURT EXT.P11.COPY OF ASSESSMENT ORDER FOR THE YEAR 1998-99 DT. 29.5.2000 ISSUED BY INCOME TAX DEPARTMENT. EXT.P12. COPY OF ASSESSMENT ORDER FOR THE YEAR 1999-2000 DT. 11.3.2002 ISSUED BY INCOME TAX DEPARTMENT. EXT.P13. COPY OF THE ORDER DT. 29.11.2004 ISSUED BY INCOME TAX COMMISSIONER. EXT.P14. COPY OF COMPLAINT DT. 25.4.2002 FILED BY THE PETITIONER. EXT.P15. COPY OF COMPLAINT DT. 19.11.2003 FILED BY THE PETITIONER. EXT.P16. COPY OF JUDGMENT IN OP 36346/02 DATED 7.2.2003 OF THIS HON'BLE COURT. VK WP(C).No. 12706 of 2005 (K) --------------------------- RESPONDENT'S EXHIBITS ---------------------- EXT.R3(A). COPY OF THE JUDGMENT DATED 7.2.2003 IN OP NO.12975/2002 PASSED BY THIS HON'BLE COURT. EXT.R3(B). COPY OF THE ORDER DT. 17.12.2004 IN SLP(C) NO.25287/2004 PASSED BY THE HON'BLE SUPREME COURT. EXT.R3(C). COPY OF THE JUDGMENT DATED 28.9.2007 IN RP NO. 175/2005 PASSED BY THIS HON'BLE COURT. EXT.R3. COPY OF THE JUDGMENT DATED 29.3.2005 IN WPC NO.16164/2003 PASSED BY THIS HON'BLE CURT EXT.R3(D). COPY OF THE JUDGMENT DATED 29.3.2005 IN WPC NO.16164/2003 PASSED BY THIS HON'BLE COURT EXT.R3(E). COPY OF THE JUDGMENT DATED 28.2.2008 IN WA NO.2092/2005 PASSED BY THIS HON'BLE COURT. EXT.R3(F). COPY OF THE JUDGMENT DATED 28.3.2008 IN WPC NO.5015/2008 PASSED BY THIS HON'BLE COURT. / TRUE COPY / P.A. TO JUDGE VK ANTONY DOMINIC,J -------------------------------- W.P.(C)No.12706 of 2005 ------------------------------------- Dated this the 9th day of January, 2013 JUDGMENT Petitioner challenges Ext.P4 notice issued by the second respondent. Reading of this notice shows that, it has been issued for recovery of the tax due under the Income Tax Act for the assessment year 1999-2000. The assessment order pertaining to that year is Ext.P12. 2. Although, Ext.P4 notice is dated 25.02.2005, it is seen that an appeal filed against Ext.P12 assessment order has been partly allowed by Ext.P13 order dated 29.11.2004. However, according to the petitioner, despite the appellate order, Ext.P4 notice has been issued for recovery of the tax due under Ext.P12 assessment order. It is with this allegation, the writ petition is filed. 3. The petitioner also has a case that by Ext.P1 Power of Attorney, the third respondent was appointed as his Power of Attorney holder. According to him, the third W.P.(C).No.12706 of 2005 : 2 : respondent played fraud and finally executed a sale deed of the hotel itself in his own favour on 25.05.2000. It is further stated that the FL-3 licence was also transferred in his name on 16.06.2000. It is stated that the sale and the transfer of licence has been challenged by him in O.S.No.14 of 2003 on the file of the Sub Court, Kottarakkara. According to him, on account of the fraud committed by the third respondent and as he conducted business during the assessment year in question, the liability for payment of tax is also that of the third respondent. 4. However, the validity of the sale and transfer of FL-3 licence are matters pending consideration of the Civil Court and fraud is a question of fact, which cannot be established in a proceedings under Article 226 of the Constitution of India. Therefore, I am unable to accept the contention of the petitioner regarding the liability itself and I leave open that issue to be decided by the W.P.(C).No.12706 of 2005 : 3 : appropriate forum. 5. However, insofar as Ext.P4 is concerned, going by the pleadings, Ext.P4 has been issued without giving effect to Ext.P13 appellate order. If that be so, Ext.P4 cannot be enforced. Therefore, I dispose of this writ petition directing that it will be open to respondents 1 and 2 to give effect to Ext.P13 appellate order and proceed to realise the amount that is due from the defaulter. Accordingly, the writ petition is disposed of leaving it open to respondents 1 and 2 to give effect to Ext.P13 and initiate action for recovery of the tax due from the defaulter. Writ petition is disposed of as above. Sd/- ANTONY DOMINIC, JUDGE ln "