M.K. Rajendran Pillai V. Assistant Commissioner of Income Tax Central Circle, Kollam and The Tax Recovery Officer (Central) Income Tax Department and Inspector General, Department of Registration

WP(C)/40852/2023

AI Insights

The case revolves around a writ petition filed by M.K. Rajendran Pillai, challenging the attachment of his immovable properties by the Income Tax Department. The attachment was initially based on assessment orders for the years 2012-13 to 2018-19, which were later set aside by the Income Tax Appellate Tribunal. Following the tribunal's decision, the assessing authority recalculated and found a refund due to the petitioner, thus questioning the continued validity of the property attachment. The respondents argued that the provisional attachment had lapsed as per the statutory provisions, leading to the disposal of the writ petition.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 820798 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-01-2024
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SUSIE VARGHESE
• Assessee Lawyers: R V EASWAR; SIDHARTH MENON; MUHAMMED ALJUQ; ANANYA RATH
• Keywords: Assessment years; Attachment of Properties; Income tax appellate tribunal; Provisional attachment; Refund; Writ of Mandamus
• Section: 142(1); 153A; 222(2)(b)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 5TH DAY OF JANUARY 2024 / 15TH POUSHA, 1945 WP(C) NO. 40852 OF 2023 PETITIONER/S: M.K. RAJENDRAN PILLAI AGED 70 YEARS RAJAVALSAM, PANANGADU PO KULANADA, PANDALAM, PATHANMTHITTA, KERALA, PIN - 689503 BY ADVS. SIDHARTH A.MENON MUHAMMED ALJUQ A. R.V.EASWAR (SR.) RESPONDENT/S: 1 ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, KOLLAM AAYAKAR BHAVAN, NEAR KARBALA JUNCTION RAILWAY STATION ROAD, KOLLAM, KERALA, PIN - 691001 2 THE TAX RECOVERY OFFICER (CENTRAL) INCOME TAX DEPARTMENT CENTRAL REVENUE BUILDING, IS PRESS ROAD KACHERIPADY KOCHI, KERALA, PIN - 682018 3 INSPECTOR GENERAL, DEPARTMENT OF REGISTRATION VANCHIYOOR P.O, THIRUVANANTHAPURAM., PIN - 695035 ADV.SUSIE B. VARGHESE-SR.SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.40852 of 2023 2 JUDGMENT Dated this the 5th day of January, 2024 Heard Sri.R.V Easwar assisted by Sri.Sidharth A Menon, Sri. Muhammed Aljuq and Ms.Ananya Rath, learned counsel appearing for the petitioner and Ms. Susie B Vargheshe, learned Senior Standing Counsel appearing for the Income Tax Department. 2. The present writ petition has been filed praying for writ of mandamus commanding the respondents to lift attachment on the immovable properties belonging to the petitioner as the Income Tax Appellate Tribunal had in its order dated 20.01.2023 in respect of the assessment years 2012-13 to 2018-19 had set aside the assessment orders and additions and remanded the matter back to the assessing authority to pass fresh assessment orders in the light of the observations made by the Income Tax Appellate Tribunal in its order dated 20.01.2023. The order of attachment was passed after the assessment orders had originally finalised by the assessing authority which have been now set aside. On remand the assessing authority has deleted the additions earlier made and refund of Rs.10,77,61,574/- in respect of the assessment years 2012-13 to 2018-19 has been work out to be granted to the petitioner. 3. Once there is no tax liability on the petitioner for which the petitioner’s properties could be attached, there is no justification for keeping the attachment on the properties after the fresh assessment order always had WP(C)No.40852 of 2023 3 been passed and refund of Rs.10,77,61,574/- has been found to be adjusted against the existing demands. 4. In the statement filed on behalf of the respondents it is stated that the provisional attachment on the properties of the petitioner was valid only for a period of six months from the date of the order as per the provisions under Section 222(2)(b) of the Income Tax Act and the said provisional attachment could be extended up to two years or sixty days from the date of the order of assessment whichever is later. It is further stated that after expiry of period of six months or further period as the case may be, the order of attachment automatically comes to an end. In the case of the petitioner, the last attachment was on 30.12.2019 which was valid for a period of six months from 30.12.2019 and thereafter the order of attachment had become void ab initio and there is no provisional attachment on the properties of the petitioner as of today. 5. Considering the said stand of the respondents that there is no order of attachment prevailing on the properties of the petitioner, the petitioner is free to deal with his properties in the manner it likes. In view of the specific stand taken by the respondents in their statement, nothing survives in this writ petition. Thus, the writ petition is disposed of taking note of the statement made by the respondents in paragraph 8 of the statement which would read as under: “8. With reference to ground F, it is submitted that the provisional attachment was made on various dates such as 20.08.2019, 15.12.2019, 30.12.2019. it is pertinent to note the provisional attachment order is valid for WP(C)No.40852 of 2023 4 only 6 months from the date of the order unless extended by such period with approval of the competent authority so much so that the total period of extension shall not exceed two years or sixty days from the date of order of assessment whichever is later. Hence on expiry of the period of 6 months or further extended period as the case may be the order of attachment becomes automatically void ab initio. In the case of the petitioner, the last attachment was on 30.12.2019, which was valid only for 6 months from 30.12.2019. thereafter the order of attachment becomes void ab initio as mentioned above. As a result, it is submitted that the provisional attachments that were made are null and void as on date.” 6. Thus, it is made clear that there is no attachment on the properties of the petitioner. With the aforesaid observation, the present writ petition stands finally disposed of. Sd/- DINESH KUMAR SINGH JUDGE AP WP(C)No.40852 of 2023 5 APPENDIX OF WP(C) 40852/2023 PETITIONER EXHIBITS Exhibit P1 NOTICES DATED 03.08.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER UNDER SECTION 153A OF THE INCOME TAX ACT, 1961 Exhibit P 1A TRUE COPY OF NOTICE DATED 19/11/2019 U/S 142(1) OF THE ACT FOR AY 2018-19 Exhibit P2 TRUE COPIES OF THE ORDERS OF PROVISIONAL ATTACHMENT DATED 20.08.2018 PASSED BY THE 1ST RESPONDENT IN RESPECT OF IMMOVABLE PROPERTIES BELONGING TO THE PETITIONER Exhibit P3 TRUE COPY OF THE ORDER DATED 18.04.2019 PASSED BY THE 1ST RESPONDENT MODIFYING ORDER DATED 15.02.2019 Exhibit P4 TRUE COPY OF THE ORDER DATED 30.10.2019 PASSED BY THE 1ST RESPONDENT IN RESPECT OF IMMOVABLE PROPERTIES BELONGING TO THE PETITIONER Exhibit P5 TRUE COPY OF ORDER DATED 28.06.2019 PASSED BY THIS HON'BLE HIGH COURT IN W.P(C) 17640 OF 2019. Exhibit P6 TRUE COPY OF THE ORDER DATED 26.07.2019 PASSED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX DISPOSING OF THE PETITION DATED 22..05.2019 Exhibit P7 TRUE COPIES OF THE NOTICES DATED 27.11.2019 ISSUED BY THE 1ST PETITIONER UNDER S. 153A FOR AYS 2008-09 TO 2011-12 Exhibit P8 TRUE COPY OF THE LETTER DATED 11.02.2020 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. Exhibit P9 TRUE COPY OF THE LETTER DATED 21.02.2020 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. Exhibit P10 TRUE COPY OF ORDER DATED 25.02.2020 PASSED BY 1ST RESPONDENT. Exhibit P11-Vol 1 TRUE COPIES OF THE ASSESSMENT ORDERS DATED 31.12.2019 ALONG WITH DEMAND NOTICES FOR AYS 2008-09 TO AY 2011-12 (VOL 1) Exhibit P11-Vol 2 TRUE COPIES OF THE ASSESSMENT ORDERS DATED 31.12.2019 ALONG WITH DEMAND NOTICES FOR AYS 2008-09 TO AY 2011-12 (VOL 2) Exhibit P12-Vol 1 TRUE COPIES OF THE ASSESSMENT ORDERS DATED 17.03.2020 FOR AYS 2012-13 TO AY 2018-19 (VOL WP(C)No.40852 of 2023 6 1) Exhibit P12-Vol 2 TRUE COPIES OF THE ASSESSMENT ORDERS DATED 17.03.2020 FOR AYS 2012-13 TO AY 2018-19 (VOL 2) Exhibit P12-Vol 3 TRUE COPIES OF THE ASSESSMENT ORDERS DATED 17.03.2020 FOR AYS 2012-13 TO AY 2018-19 (VOL 3) Exhibit P13 TRUE COPIES OF THE NOTICES OF DEMAND DATED 15.10.2020 ISSUED BY THE 2ND RESPONDENT Exhibit P14 TRUE COPIES OF THE NOTICES OF DEMAND DATED 16.10.2020 ISSUED BY THE 2ND RESPONDENT Exhibit P15 TRUE COPIES OF THE ORDERS DATED 13.11.2020 PASSED BY THE 2ND RESPONDENT Exhibit P16 TRUE COPIES OF THE ORDERS DATED 17.11.2020 PASSED BY THE 2ND RESPONDENT Exhibit P17 TRUE COPY OF LIST OF IMMOVABLE PROPERTIES WHICH WERE SUBJECT TO PROVISIONAL ATTACHMENT BUT NOT SUBSEQUENT ATTACTMENT UNDER S 222(1)OF THE ACT Exhibit P18 TRUE COPIES OF THE ORDERS PASSED IN FORM 5 OF THE DIRECT TAX VIVAAD SE VISWAAS SCHEME (DTVSVS) FOR AYS 2008-09 TO 2011-12 Exhibit P19 TRUE COPIES OF THE CONSEQUENTIAL GIVING EFFECT ORDERS PASSED UNDER THE DTVSVS FOR AYS 2008-09 TO 2011-12 Exhibit P20 TRUE COPIES OF THE ORDERS PASSED BY THE CIT(A) DISMISSING THE APPEALS FOR AYS 2008-09 TO 2011-12 AS WITHDRAWN Exhibit P21 TRUE COPIES OF THE NOTICES DATED 19.06.2023 INTIMATING THE PETITIONER ABOUT THE CLOSURE OF PENALTY PROCEEDINGS FOR AYS 2008-09 TO 2011-12 Exhibit P22 TRUE COPY OF THE COMMON ORDER PASSED BY THE CIT(A) DATED 16.03.2022 FOR AYS 2012-13 TO 2017-18 Exhibit P23 TRUE COPY OF THE COMMON ORDER DATED 20.01.2023 PASSED BY THE ITAT FOR AYS 2012-13 TO 2017-18 Exhibit P24 TRUE COPIES OF LETTER DATED 04.02.2023 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P25 TRUE COPIES OF LETTER DATED 02.06.2023 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P26 TRUE COPIES OF LETTER DATED 24.08.2023 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P27 TRUE COPIES OF LETTER DATED 31.10.2023 ISSUED WP(C)No.40852 of 2023 7 BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P28 TRUE COPY OF THE LETTER DATED 06.06.2023 ISSUED BY THE 1ST RESPONDENT Exhibit P29 TRUE COPIES OF LETTER DATED 14.06.2023 ISSUED BY THE PETITIONER Exhibit P30 TRUE COPIES OF THE ORDERS DATED 04.10.2023 GIVING EFFECT TO THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL Exhibit P31 TRUE COPY OF THE PETITIONER'S RECTIFICATION PETITION UNDER SECTION 154 OF THE ACT DATED 30.10.2023 FOR AY 2017-18 Exhibit P32 TRUE COPY OF THE CHALLAN DATED 01.11.2023 DEMONSTRATING PAYMENT OF RS. 8,878/- FOR AY 2015-16 Exhibit P33 TRUE COPY OF THE LETTER DATED 10.11.2023 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT Exhibit P34 TRUE COPY OF THE LETTER DATED 11.11.2023 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit P35 TRUE COPY OF LIST OF IMMOVABLE PROPERTY ATTACHED VIDE ORDER DATED 13.11.2020 AND 17.11.2020 "