K.K.THOMAS V. THE COMMISSIONER OF INCOEM TAX & OTHERS

WP(C)/22751/2008

AI Insights

The case involves two writ petitions filed by K.K. Thomas and K.K. Sebastian, directors of a private limited company, challenging the tax demands for the assessment years 1992-93 and 1993-94. The petitions sought to quash the orders and notices issued by the income tax authorities and declared non-liability for the tax dues of the company. The court found that the tax demand for 1992-93 had been settled under the Direct Tax Vivad Se Vishwas Rules, 2020, and thus quashed the related demands. However, the dispute for 1993-94 was still pending before the appellate Tribunal, and the court allowed the petitioners to contest their case there.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 732666 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 12-10-2022
• Assessment Year: misc
• Laws Referred To: Direct Tax Vivad Se Vishwas Rules, 2020
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; GEORG GEORGE
• Assessee Lawyers: V M KURIAN; MATHEW KURIAN; C N SREEKUMAR; K T THOMAS
• Keywords: Assessment Year; Direct Tax Vivad Se Vishwas; Tax liability; Writ of Certiorari
• Section: 264; 179(1)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 12TH DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 WP(C) NO. 22751 OF 2008 PETITIONER: K.K.THOMAS, ANATHANAM HOUSE, KANJIRAPPILLY. BY ADVS. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.C.N.SREEKUMAR SRI.K.T.THOMAS RESPONDENTS: 1 THE COMMISSIONER OF INCOME TAX, C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI-18. 2 INCOME TAX OFFICER, WARD I ERNAKULAM, C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI - 18. 3 TAX RECOVERY OFFICER, RANGE I, ERNAKULAM. BY ADV SRI.JOSE JOSEPH, SC FOR INCOME TAX SRI.GEORG K.GEORGE, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2022, ALONG WITH WP(C).7360/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 22751/08 & 7360/09 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 12TH DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 WP(C) NO. 7360 OF 2009 PETITIONER: K.K.SEBASTIAN, ANATHANAM HOUSE, 142, KURIANS ROAD, THRIKKAKARA, KOCHI-21. BY ADVS. SRI.JOSEPH KODIANTHARA SRI.B.J.JOHN PRAKASH SRI.TERRY V.JAMES RESPONDENTS: 1 THE COMMISSIONER OF INCOME TAX C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI.18. 2 INCOME TAX OFFICER WARD I, ERNAKULAM, C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI-18. 3 TAX RECOVERY OFFICER RANGE I, ERNAKULAM. BY ADV SRI.JOSE JOSEPH, SC, FOR INCOME TAX SRI.GEORG K.GEORGE, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2022, ALONG WITH WP(C).22751/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 22751/08 & 7360/09 3 P.V.KUNHIKRISHNAN, J. ------------------------------ W.P.(C).Nos. 22751 of 2008 and 7360 of 2009 ---------------------------------------------- Dated this the 12th day of October, 2022 JUDGMENT These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment. 2. W.P.(C)No.22751 of 2008 is filed with the following prayers: “a) issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P15 order passed by the 1st respondent Ext.P13 order passed by the 2nd respondent. b) issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P16 notice issued by the 3rd respondent. c) to declare that the petitioner is not liable to pay the tax due from the company for the year 1992- 93 and 1993-94. d) grant such other and further reliefs as this Hon’ble Court may deem fit to grant in the facts and WP(C) NO. 22751/08 & 7360/09 4 circumstances of the case.”[SIC] 3. The above writ petition relates to the payment of tax for the assessment year 1992 – 93 and 1993 – 94. 4. W.P.(C)No.7360 of 2009 is filed with the following prayers: “(i) issue a writ of certiorari or other appropriate writ, order or direction quashing Exhibit-P14 and P16 orders and P17 and P19 demand notices; (ii) Declare that the Petitioner is not liable for any income tax dues from the said Metro Stocks and Shares Pvt Ltd. (iii) Stay the operation of and further proceedings pursuant to Exts.P17 and P19 including recovery of the amounts demanded therein; (iv) Grant such other and further reliefs as this Hon’ble Court may deem fit to grant in the facts and circumstances of the case.”[SIC] 5. The above writ petition relates to the payment of tax for the assessment year 1992 – 93 and 1993 – 94. These writ petitions are filed by the Directors of a WP(C) NO. 22751/08 & 7360/09 5 private Limited Company. 6. When these writ petitions came up for consideration, both sides submitted that, as far as the assessment year 1992 -93 is concerned, the entire demand has been settled as per the Direct Tax Vivad Se Vishwas Rules, 2020. But as far as the dispute with regard to the assessment year 1993 – 94 is concerned, the matter is pending before the appellate Tribunal. Therefore, these writ petitions can be closed granting liberty to the petitioners to raise all their contentions before the appellate Tribunal as far as the assessment year 1993 – 94 is concerned and the demand under Section 179(1) can be quashed as far as the assessment year 1992 – 93 is concerned. Therefore, these writ petition are disposed of in the following manner: i) Ext.P14 in W.P.(C)No.7360 of 2009 and Ext.P13 in W.P.(C)No.22751 of 2008 are quashed, as far WP(C) NO. 22751/08 & 7360/09 6 as the assessment year 1992 – 93 is concerned. ii) All other contentions raised in these writ petitions based on the assessment year 1993 -94 is left open and the department is free to take appropriate steps based on the decision of the Tribunal. iii) Petitioners are also free to take appropriate steps in accordance to law based on the decision of the Tribunal. Sd/- P.V.KUNHIKRISHNAN DM JUDGE WP(C) NO. 22751/08 & 7360/09 7 APPENDIX OF WP(C) 7360/2009 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF DEMAND NOTICE DATED 21- 9-2004 ISSUED BY THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF OBJECTION DATED 30-10- 2004 SUBMITTED TO THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF AUDIT REPORT DATED 20- 12-1991 ALONG WITH SUMMARY STATEMENT OF THE PROFIT AND LOSS ACCOUNT EXHIBIT P4 TRUE COPY OF THE SUMMONS DATED 26-11- 1993 ISSUED TO THE COMPANY BY THE ASSESSING AUTHORITY. EXHIBIT P5 TRUE COPY OF ORDER DATED 16-2-1995 ISSUED BY THE ASSESSING AUTHORITY EXHIBIT P6 TRUE COPY OF LETTER DATED 8-9-1995 OF THE CHAIRMAN OF THE COMPANY TO THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF ASSESSMENT ORDER DATED 25-9-1995 EXHIBIT P8 TRUE COPY OF THE APPEAL GROUNDS FILED BEFORE THE CIT (APPEALS) EXHIBIT P9 TRUE COPY OF NOTICE DATED 5-1-2007 ISSUED TO THE PETITIONER EXHIBIT P10 TRUE COPY OF OBJECTIONS DATED 24-1- 2007 FILED BY THE PETITIONER. EXHIBIT P11 TRUE COPY OF REVISED ORDER DATED 9-1- 2008 OF THE COMMISSIONER (APPEALS) EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS DATED 27-7-2004 OF THE 3RD RESPONDENT EXHIBIT P13 TRUE COPY OF THE ORDER DATED 17-3- 2008 OF THE 3RD RESPONDENT. EXHIBIT P14 TRUE COPY OF ORDER DATED 30-4-2007 OF WP(C) NO. 22751/08 & 7360/09 8 THE 2ND RESPONDENT. EXHIBIT P15 TRUE COPY OF PETITIONER'S REVISION PETITION DATED 4-7-2007 FILED BEFORE THE 1ST RESPONDENT. EXHIBIT P16 TRUE COPY OF ORDER DATED 22-4-2008 OF THE 1ST RESPONDENT IN EXHIBIT-P15. EXHIBIT P17 TRUE COPY OF NOTICE DATED 27-3-2008 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P18 TRUE COPY OF REPLY DATED 7-4-2008 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P19 TRUE COPY OF NOTICE DATED 16-12-2008 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. RESPONDENTS EXHIBITS: NIL WP(C) NO. 22751/08 & 7360/09 9 APPENDIX OF WP(C) 22751/2008 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE AUDIT REPOT DATED 20.12.1991 ALONG WITH SUMMARY STATEMENT OF THE PROFIT AND LOSS ACCOUNT. EXHIBIT P2 TRUE COPY OF THE SUMMONS DATED 26.11.1993 TOGETHER WITH THE LETTER REFERRED TO IN THE SUMMONS. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16.02.1995 ISSUED BY THE ASSESSING AUTHORITY APPOINTING SPECIAL AUDITOR. EXHIBIT P4 TRUE COPY OF THE SUMMONS DATED 18.09.1995. EXHIBIT P5 TRUE COPY OF THE LETTER DATED 15.09.1995 OF THE AUDITOR OF THE COMPANY. EXHIBIT P6 TRUE COPY OF THE LETTER DATED 08.09.1995 OF THE CHAIRMAN OF THE COMPANY. EXHIBIT P7 TRUE COPY OF ASSESSMENT ORDER DATED 25.09.1995. EXHIBIT P8 TRUE COPY OF THE APPEAL ORDER DATED 29.11.1995. EXHIBIT P9 TRUE COPY OF DEMAND NOTICE DATED 23.08.2004 TOGETHER WITH THE SUMMONS DATED 23.09.2004. EXHIBIT P10 TRUE COPY OF THE OBJECTION DATED 4.10.2004 SUBMITTED BY PETITIONER BEFORE THE TAX RECOVERY OFFICER EXHIBIT P11 TRUE COPY OF THE PROCEEDINGS DATED 27.07.2004. WP(C) NO. 22751/08 & 7360/09 10 EXHIBIT P12 TRUE COPY OF THE PROCEEDINGS DATED 17.03.2008. EXHIBIT P13 TRUE COPY OF THE ORDER DATED 30.04.2007 ISSUED BY THE INCOME TAX OFFICER. EXHIBIT P14 TRUE COPY OF REVISION PETITION DATED 27.09.2007 FILED UNDER SECTION 264 OF THE I.T. ACT. EXHIBIT P15 TRUE COPY OF THE ORDER DATED 21.04.2008 PASSED IN REVISION BY THE 1ST RESPONDENT. EXHIBIT P16 TRUE COPY OF THE NOTICE DATED 27.03.2008. RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE "