K.T.SEBASTIAN V. COMMISSIONER OF COMMERCIAL TAXES

WP(C)/4037/2007

AI Insights

The case involves K.T. Sebastian, the petitioner, who is an assessee under the Kerala Agricultural Income Tax Act, 1991. The dispute arose from the assessment orders for the years 1991-92, 1992-93, and 1993-94, which were initially completed but later modified by the appellate authority. The assessing authority failed to consider these modifications in subsequent assessments. The petitioner filed an application under Section 42 of the Act for rectification of these mistakes, which was dismissed as being out of time. The petitioner challenged this dismissal and the subsequent recovery proceedings through a writ petition, seeking to quash the dismissal and stay the recovery actions.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 727066 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 31-05-2011
• Assessment Year: misc
• Laws Referred To: Kerala Agricultural Income Tax Act, 1991
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ANTONY MUKKATH
• Assessee Lawyers: M J THOMAS
• Keywords: Agricultural income-tax; Assessment; Certiorari; Certiorari; Mandamus; Rectification of mistake; Writ petition
• Section: 42

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 WP(C).No. 4037 of 2007(E) ------------------------- PETITIONER(S): --------------- K.T.SEBASTIAN, S/O.THOMAS, AGED 63 YEARS, POOVANCHY, KUNNUBHAGAM, KANJIRAPPALLY, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): --------------- 1. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, KOLLAM. 3. THE AGRICULURE INCOME TAX AND COMMERCIAL TAX OFFICER, KANJIRAPPALLY. 4. THE DEPUTY TAHSILDAR, REVENUE RECOVERY KANJIRAPPALLY, KOTTAYAM. 5. THE VILLAGE OFFICER, CHIRAKADU, KANJIRAPPALLY, KOTTAYAM. GOVT. PLEADER SHRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 4037/2007 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE APPLICATION BEFORE R3. P2. COPY OF THE REPLY DTD.22.2.06. P3. COPY OF THE COMPLAINT DTD.22.2.06. P4. COPY OF THE COMPLAINT TO R1 DTD.1.12.06. P5. COPY OF THE ORDER DTD. NIL OF R3. P6. COPY OF THE LETTER DTD.10.3.06. P7. COPY OF THE NOTICE UNDER R.R. ACT. P8. COPY OF THE R.R. NOTICE. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 4037 of 2007 ================== Dated this the 31st day of May, 2011 J U D G M E N T The petitioner is an assessee under the Kerala Agricultural Income Tax Act, 1991, on the files of the Agricultural Income Tax Office, Kanjirappally. For the assessment years 91-92, 92-93 and 93- 94, assessment was completed by orders dated 19.10.92, 19.10.92 and 9.6.2003 respectively. The petitioner took the matter in appeal and the appellate authority modified the assessment order. Subsequently, the matter was sent back to the assessing authority to pass orders modifying the assessment in accordance with the appellate order. The said direction was not considered while assessment was made for the said assessment orders. Therefore, the petitioner filed Ext.P1 application under Section 42 of the Act for rectification of the mistakes. It appears that subsequently the petitioner filed anther application under Section 42, which was dismissed by Ext.P5 on the ground that the mistakes should be rectified within four years. Subsequently, Exts.P7 and P8 recovery proceedings were also initiated. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) Call for the records relating to Exts.P5 and to quash the same by issuance of writ of certiorari; ii) Issue a writ of mandamus or other appropriate writ or order w.p.c.4037/07 2 directing the 3rd respondent to dispose of Ext.P1 on the merits taking into consideration that the same was filed within time. iii) Stay the recovery of the amount as per Exts.P7 and P8; iv) Allow the petitioner to file appeal against Ext.P5 order before the 2nd respondent.” 2. A counter affidavit has been filed seeking to sustain the impugned proceedings. 3. I have considered the rival contentions in detail. 4. Section 42 of the Kerala Agricultural Income Tax Act reads thus; “Section 42:- Rectification of mistake (1) An assessing authority or the appellate or revisional authority (including the Appellate Tribunal) may of its own motion or an application by the assessee at any time within four years from the date of any order passed by it rectify any mistake apparent from the record.” As per the same, an application under Section 42 for rectification can be filed at any time within four years from the date of the order passed by the authority. In Ext.P5 order, it is specifically stated that the assessment orders were passed on 19.10.1992, 19.10.1992 and 9.6.2003. It is also specifically stated therein that the application under Section 42 was filed on 5.12.1994, which is well within the time stipulated in Section 42. The finding in Ext.P2 that the mistake should be rectified within four years is not only against the express provisions in Section 42 but also against common sense. That means even if there is a mistake and party has applied within time, if the assessing officer sits on it for four years no action need be taken on the same, w.p.c.4037/07 3 which is nothing but perverse. In the above circumstances, I am satisfied that the impugned orders and demands are liable to be quashed. Accordingly, Exts.P5, P7 and P8 are quashed. The 3rd respondent is directed to reconsider Ext.P1 application submitted by the petitioner under Section 42 of the Kerala Agricultural Income Tax Act and pass appropriate orders on the same on merits, in accordance with law, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge "