K.P. Abdul Majeed V. The Assistant Commissioner of Income Tax, Circle 1[1] and Commissioner of Income Tax (Appeals)

WP(C)/12706/2012

AI Insights

The petitioner, K.P. Abdul Majeed, challenged the assessment orders for several financial years and the directions issued by the Commissioner of Income Tax (Appeals) in a writ petition. The main contention was the lack of provision of evidence and opportunity for cross-examination during the appellate proceedings. The court found that the appeals had been pending for an extended period with multiple hearings and directed the Commissioner to conclude the appeals expeditiously, emphasizing the need for a timely resolution in accordance with the law.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 799153 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 19-07-2012
• Assessment Year: misc
• Other Referred Cases: CIT v. Nirbheram Daluram (1997(224) ITR 610)
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: P RAGHUNATH; PREMJIT NAGENDRAN
• Keywords: Appeal; Assessment Order; Cross Examination; Cross-examination; Income tax assessment; Writ of Certiorari; Writ of Mandamus
• Section: 251

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 19TH DAY OF JULY 2012/28TH ASHADHA 1934 WP(C).No. 12706 of 2012 (K) --------------------------- PETITIONER: ----------------- K.P. ABDUL MAJEED, AGED 61 YEARS “SONA” KOTTARAM ROAD, CALICUT. BY ADVS.SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN RESPONDENTS: ----------------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1[1], AAYAKAR BHAVAN, CALICUT-673001. 2. COMMISSIONER OF INCOME TAX (APPEALS) AAYAKAR BHAVAN, CALICUT-673 001. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BP WP(C).No. 12706 of 2012 (K) APPENDIX PETITIONER'S EXHIBITS : EXT.P1 PHOTOCOPY OF ASSESSMENT ORDER FOR 2002-03 DATED 29.12.2006. EXT.P2 PHOTOCOPY OF ASSESSMENT ORDER FOR 2003-04 DATED 29.12.2006. EXT.P3 PHOTOCOPY OF JUDGMENT IN WP(C)NO.2212/2007 DT.04.10.2007. EXT.P4 PHOTOCOPY OF APPEAL FILED AGAINST EXT.P1 ORDER FOR 2002-2003. EXT.P5 PHOTOCOPY OF APPEAL FILED AGAINST EXT.P2 ORDER FOR 2003-2004. EXT.P6 PHOTOCOPY OF LETTER DT.07.01.2008 FROM R2 REG: INSTRUCTIONS TO R1. EXT.P7 LETTER FILED BEFORE R1 REQUESTING FOR COPIES OF RECORDS. EXT.P8 REMAND REPORT SUBMITTED BY R1 TO R2. EXT.P9 STATEMENT GIVEN BY SRI.BINEESH MATHEW DURING CROSS EXAMINATION. EXT.P10 STATEMENT GIVEN BY SRI.SHERIFF DURING CROSS EXAMINATION. EXT.P11 STATEMENT GIVEN BY SRI.N.P.SAIDU DURING CROSS EXAMINATION. EXT.P12 STATEMENT GIVEN BY ABDUL GAFOOR GIVEN DURING CROSS EXAMINATION. EXT.P13 PHOTOCOPY OF ASSESSMENT ORDER FOR 2004-05 DATED 30.12.2009. EXT.P14 PHOTOCOPY OF APPEAL FILED AGAINST EXT.P13 ORDER FOR 2004-05. EXT.P15 PHOTOCOPY OF ASSESSMENT ORDER FOR 2003-04 DATED 30.12.2010. EXT.P16 PHOTOCOPY OF APPEAL FILED AGAINST EXT.P5 ORDER FOR 2003-04. EXT.P17 PHOTOCOPY OF LETTER DT.16.11.2011 ISSUED BY R2 TO R1. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE BP P.R.RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c) No. 12706 OF 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of July , 2012 JUDGMENT The petitioner has approached this Court with the following prayers : A: Issue a writ of certiorari quashing the original of Ext.P17 direction issued by the second respondent ; B: Issue a writ of mandamus directing the second respondent to dispose of Exts.P4, P5 , P14 and P16 appeals filed against the assessment orders ; C: Pass such other orders as the petitioner may pray for and this Hon'ble Court may deem fit to grant in the circumstances of the case. 2. The case the petitioner in a nut shell, as given in the writ petition is as follows : “ The assessments made on the petitioner for the year 2001-02, 2002-03, 2003-04 and 2004-05 as well as escaped assessments for the years 2003-04 and 2004- 05 were challenged before the Appellate Authority in appeals. When the appeals WPC.No.12706/2012 2 against the assessments for 2002-03 and 2003-04 were taken up for hearing on 04/01/2008 the petitioner had contended that the petitioner has not been provided with copies of the evidence relied on by the Assessing Authority and that he petitioner should be afforded an opportunity to cross examine witnesses whose statements are made use of against the petitioner. Based on the said submissions, the Appellate Authority called for a Remand Report from the Assessing Authority, to be submitted after the copies of documents are furnished to the petitioner and he is also afforded an opportunity to cross examine such witnesses. The Assessing Authority thereafter reported that the witnesses had not turned up for cross examination. The Appellate Authority appears to have sent a DO letter to the Assessing Authority as also the jurisdictional Commissioner and based on that, the witnesses were once WPC.No.12706/2012 3 again summoned when they turned up and were cross examined except for one witness who did not turn up. Thereafter, the above appeals were heard on several occasions like 30.12.2008, 14.01.2009, 22.01.2009, 19.02.2009, 26.06.2009, 16.09.2009, 09.12.2009, 26.05.2010, 16.09.2010, 24.02.2011, 04.07.2011. On 18.11.2011, the petitioner received a copy of letter addressed to the Assessing Authority sent by the Appellate Authority where the Appellate Authority has observed that he understands that certain government agencies have carried out certain investigations and therefore he is required to get the reports from those agencies and “take appropriate action/further investigation depending on the results of investigation” and further directing him to “take any other action you may deem fit, to take the assessment to a logical end”. It is submitted that admitted the appellate authority under the IT Act has WPC.No.12706/2012 4 absolutely no powers to issue such directions to the Assessing Authority nor have such directions any bearing on the disposal of the appeals filed against the Assessments. The directions are beyond the powers conferred on the Appellate Authority under Sec.251 of the Act.” 3. The respondents have filed a statement through the learned standing counsel pointing out that, there is absolutely no basis for the challenge raised against Ext.P17 communication dated 16/11/2011 issued by the second respondent. The course pursued by the second respondent vide Ext.P17 is sought to be justified with reference to the statutory prescription, the powers conferred upon the concerned respondent thereunder, the nature of duty cast upon the authorities and also the law declared by the Apex Court in CIT v. Nirbheram Daluram ( 1997(224) ITR 610). 4. After hearing both the sides, this Court does not find it necessary to express anything with regard to the course pursued by the second respondent with reference to Ext.P17, as it can be dealt with separately at the appropriate time. It remains a fact that the concerned WPC.No.12706/2012 5 assessment orders for the years 2002-03 to 2004-05 and so also the escaped assessments for the years 2003-04 and 2004-05 stand already subjected to challenge by filing statutory appeals, as borne by Exts.P4, P5, P14 and P16. The said proceedings are pending for quite long and as put forward by the petitioner, the hearing was held on several occasions including on 30.12.2008, 14.01.2009, 22.01.2009, 19.02.2009, 26.06.2009, 16.09.2009, 09.12.2009, 26.05.2010, 16.09.2010, 24.02.2011, 04.07.2011. In the above circumstances, this Court finds that the appeals have to be finalised by passing orders, in accordance with law. Accordingly, the second respondent is directed to take up Exts.P4, P5, P14 and P16 appeals and pass final orders therein, after hearing the petitioner, in accordance with law, as expeditiously as possible and at any rate within 'four months' from the date of receipt of a copy of this judgment. Writ petition is disposed of. P.R.RAMACHANDRA MENON JUDGE sv. WPC.No.12706/2012 6 WPC.No.12706/2012 7 "