M.J.GEORGE V. ASSISTANT COMMISSIONER TO INCOME TAX

WP(C)/11900/2014

AI Insights

The case involves M.J. George, the petitioner, who challenged an order from the Assistant Commissioner of Income Tax regarding the liability to pay capital gains tax, as levied under Section 45 of the Income Tax Act, 1961. The issue arose after the Income Tax Appellate Tribunal remanded the matter back to the Assessing Officer, who then issued a fresh order. The petitioner contended that the Assessing Officer should not have reopened the entire matter, as the Tribunal's remand was specific to a particular issue. The High Court of Kerala, however, found that the order challenged was appealable and thus directed the petitioner to pursue the appellate route.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 765962 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-05-2014
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: K I MATHER; JAIKRISHNA R; V V ASOKAN
• Keywords: Appellate remedy; Article 226; Assessing Officer; Capital gains tax; Condonation of delay; Income Tax; Remand
• Section: 271(1)(c); 45

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 21ST DAY OF MAY 2014/31ST VAISAKHA, 1936B WP(C).No. 11900 of 2014 (J) ---------------------------- PETITIONER/PETITIONER: ------------------------------------------------ M.J.GEORGE @ MUKKADAYIL JOSEPH GEORGE, MUKKADAYIL HOUSE, KRISHNASWAMY CROSS ROAD, ERNAKULAM KOCHI-682035. BY ADVS.SRI.K.I.MAYANKUTTY MATHER SRI.JAIKRISHNA.R SRI.JAIKRISHNA.R SRI.V.V.ASOKAN (SR.) RESPONDENT/RESPONDENT: -------------------------------------------------- ASSISTANT COMMISSIONER TO INCOME TAX, CIRCLE-2(1), RANGE II, 3RD FLOOR CR BUILDING, IS PRESS ROAD, ERNAKULAM KOCHI-682018. R BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11900 of 2014 (J) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 COPY OF THE SALE DEED NO.526/2006 DATED 13.2.2006 EXT.P2 COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2006-2007 DATED 31.12.2008 EXT.P3 COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER,KAKKANAD DATED 3.2.2006 EXT.P3(A) COPY OF THE ENGLISH TRANSLATION OF EXT.P3 CERTIFICATE ISSUED BY THE VILLAGE OFFICER,KAKKANAD DATED 3.2.2006 EXT.P4 COPY OF THE VALUATION CERTIFICATE ISSUED BY THE APPROVED VALUER (GOVERNMENT OF INDIA)DATED 5.1.2006 EXT.P4(A) COPY OF THE CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER,ELECTRICAL SECTION,THRIKKAKARA DATGED 30.1.2008 EXT.P5 COPY OF THE APPELLATE ORDER PASSED BY THE CIT (APPEALS), ERNAKULAM DATED 31.3.2011 EXT.P6 COPY OF THE APPEAL FILED BY THE DEPARTMENT BEFORE THE INCOME TAX APPELLATE TRIBUNAL (ITA NO.525/COCH/2011)DATED 1.7.2011 EXT.P7 COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH DATED 16.11.2012 EXT.P8 COPY OF THE NOTICE OF HEARING GIVEN BY THE RESPONDENT DATED 26.2.2014 EXT.P9 COPY OF THE REVISED ORDER OF ASSESSMENT PASSED BY THE RESPONDENT DATED 28.3.2014 EXT.P10 COPY OF THE NOTICE PROPOSING PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)C OF THE INCOME TAX ACT DATED 28.3.2014 EXT.P11 COPY OF THE RELAVANT TEXT OF SO NO.10E DATED 6.1.1994 RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- TRUE COPY P.A TO JUDGE K.Vinod Chandran, J. ---------------------------------------- W.P.(C).No.11900 of 2014 ----------------------------------------- Dated this the 21st day of May, 2014 J U D G M E N T The petitioner is aggrieved by the order of the Assessing Officer, made on remand by the Tribunal. Without going into the facts or issues raised, suffice it to notice that the Tribunal in the earlier proceedings made an order of remand. The Assessing Officer passed a fresh order on a fresh consideration of the issue regarding the liability of the petitioner to pay capital gains tax as levied under Section 45 of the Income Tax Act, 1961. The contention of the learned counsel appearing for the petitioner to maintain the above proceedings under Article 226 stems from the sole ground that the Tribunal has made a specified remand on a particular issue and the Assessing Officer on a de-novo consideration ought not to have re-opened the entire matter. Since the order now challenged before this WPC No.11900/2014 ::2:: Court is an appealable order, it may not be proper for this Court to consider the scope of remand, under Article 226 of the Constitution of India. In such circumstance, the petitioner is relegated to the appellate remedy and the petitioner would also be entitled to seek condonation of delay under Section 14 of the Limitation Act for the period during which the above writ petition was pending before this Court. Writ petition hence stands dismissed, however, leaving open the liberty of the petitioner to approach the appellate authority. Sd/- K.VINOD CHANDRAN, jma Judge //true copy// P.A to Judge "