MAYA SREEKUMAR, V. INCOME TAX OFFICER,

WA/114/2020

AI Insights

The case involves the legal heirs of a deceased individual, who were appellants in a writ appeal against the judgment of a Single Judge of the High Court of Kerala. The original writ petition challenged an income tax assessment order. The assessment was initially set aside and remanded for a fresh assessment, but the assessee's failure to cooperate led to a new assessment order, which was later challenged. The main contention in the writ petition was the lack of a demand notice under Section 156 of the Income Tax Act, which was countered by the department with evidence of a demand notice being served. The Single Judge dismissed the writ petition, leading to the current appeal.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 754269 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 28-01-2020
• 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; R JAIKRISHNA; NARAYANI HARIKRISHNAN
• Keywords: Demand notice; Income tax assessment; Recovery proceedings; Revision petition; Schizophrenia
• Section: 264; 156

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR TUESDAY, THE 28TH DAY OF JANUARY 2020 /8TH MAGHA, 1941 WA.No.114 OF 2020 AGAINST THE JUDGMENT IN WP(C) 11199/2013(Y) OF HIGH COURT OF KERALA APPELLANTS/PETITIONERS 2 TO 4: 1 MAYA SREEKUMAR, W/O. LATE K.R . SREEKUMAR, KANNAMPILLIL, VALIATHU, S.V. MARKET P.O. KARUNAGAPPALLY. 2 MEERA M.S, D/O. LATE K.R . SREEKUMAR, KANNAMPILLIL, VALIATHU, S.V. MARKET P.O. KARUNAGAPPALLY. 3 GANGARAM, S/O. LATE K.R . SREEKUMAR, KANNAMPILLIL, VALIATHU, S.V. MARKET P.O. KARUNAGAPPALLY. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA KUM.NARAYANI HARIKRISHNAN RESPONDENTS/RESPONDENTS: 1 INCOME TAX OFFICER, WARD IV, INCOME TAX OFFICE, ALAPPUZHA P.O. ALAPPUZHA 688 001. 2 THE TAX RECOVERY OFFICER, ROOM NO. 7, 1ST FLOOR, PUBLIC LIBRARY BUILDING, KOTTAYAM H.P.O. SASTRI ROAD, KOTTAYAM 686 001. OTHER PRESENT: SRI. JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No.114/2020 -:2:- C.K. ABDUL REHIM & T.V. ANILKUMAR, JJ. ----------------------------------------------------- W.A. No. 114 OF 2020 ------------------------------------------------------- Dated this the 28th day of January, 2020 J U D G M E N T Abdul Rehim, J. Legal heirs of deceased 1st writ petitioner, who were the writ petitioners 2 to 4 in W.P.(C) No.11199/2013, are the appellants herein, challenging judgment of the Single Judge, dated 19th December, 2019. Respondents are the respondents in the writ petition. 2. Against Ext.P2 order of assessment finalised against the deceased 1st writ petitioner, with respect to the assessment year 1999 – 2000, he filed a revision petition before the Commissioner of Income Tax, Kottayam, under Section 264 of the Income Tax Act, 1961. By virtue of Ext.P3 order passed in that revision petition, the assessment was set aside and the W.A. No.114/2020 -:3:- matter was remitted back to the assessing authority for passing fresh assessment order, after giving copies of the statement recorded from the loan creditors and after allowing cross examination of the creditors, if so desired by the assessee. The Assessing Officer was directed to admit fresh evidence, if any produced, by the assessees. The assessee appeared before the Assessing Officer in the consequential proceedings. But he sought time and thereafter failed to turn out. This, according to the appellants, was due to his illness, because he had been suffering from chronic Schizophrenia. However, it was the case of the 1st petitioner that, the consequential order passed by the Assessing Officer under Ext.P5(a) was not served to him. In the year 2011, when recovery steps were initiated, the assessee requested for a copy of the order. It is accordingly that Ext.P5(a) was served on him, in December, 2011. But, still there was no steps taken to challenge Ext.P5(a), from the side of the deceased 1st petitioner. Thereafter, when sale proclamation was published with respect to immovable W.A. No.114/2020 -:4:- properties belonging to the deceased, during March, 2013, the above writ petition was filed. 3. One of the main contention raised in the writ petition was that, along with Ext.P5(a) order of assessment, no notice of demand as contemplated under Section 156 of the I.T. Act was issued. But the said contention was controverted by the Department(Revenue) on producing Ext.R1(a), which would substantiate that a demand notice was served along with Ext.P5(a) on the assessee in the year 2006 itself, which he had received on 03.01.2007. Therefore the learned Single Judge had refused to interfere with Ext.P5(a) order of assessment, by observing that the challenge is made at a highly belated stage. It was categorically found that, various adjournments were given by the Assessing Officer after remand of the matter through Ext.P3 order, and the assessee had not cooperated with the proceedings; nor had he taken any steps to cross examine the loan creditors, despite furnishing of the cash flow statement and other materials to him. Hence the Single Judge W.A. No.114/2020 -:5:- found that there exists no illegality or perversity vitiating the order of assessment, justifying any interference at this highly belated point of time. Consequentially the writ petition was dismissed. The above appeal is filed challenging the said judgment. 4. Heard; counsel for the appellants as well as Standing Counsel for the Government of India(Taxes). 5. We take note of the fact that the original assessment was completed as early as in the year 2004. The assessee challenged the same in revision petition and obtained Ext.P3 order of remand, in the year 2006. Evidently, consequential proceedings was initiated before the Assessing Officer in May, 2006. Different opportunities were afforded to the assessee. He had once appeared before the Assessing Officer, on 19.12.2006. But the assessee has not adduced any fresh evidence nor made any request for cross examination of the loan creditors. In addition, he only sought time. Since there existed a direction for time bound disposal of the matter, the W.A. No.114/2020 -:6:- Assessing Officer finalized the assessment under Ext.P5(a). Ext.R1(a) produced by the department would reveal that Ext.P5(a) order of assessment was served upon the assessee along with a demand notice, in January, 2007. Thereafter, the matter was kept ignored by the 1st petitioner/assessee till 2011. Even though a fresh copy of Ext.P5(a) was served at the request of the assessee in the year 2011 itself, the above writ petition was filed only in the year 2013, when the sale proclamation notice was received pursuant to the recovery steps initiated. Therefore the learned Singe Judge was perfectly justified in declining interference. 6. We take note of the fact that, neither the assessee(deceased 1st writ petitioner) nor the appellants herein, who were the legal heirs impleaded in the writ petition, had taken any attempt to challenge the consequential assessment by availing the statutory remedy of appeal. Therefore there is every justification on the part of this court in refusing interference with the recovery proceedings initiated. This is W.A. No.114/2020 -:7:- more so, because the petitioners have failed in their contention that there was lack of service of proper demand notice. Hence we are of the opinion that the Writ Appeal deserves no merit and the same is liable to be dismissed. 7. However, learned counsel for the appellants had pointed out that, the observations contained in the impugned judgment may stand in their way in availing the statutory remedy of appeal, even by seeking condonation of delay, before the appellate authority. We are of the opinion that, dismissal of the writ petition could not be in a manner foreclosing the remedy if any available to the appellants in challenging the revised assessment by availing statutory remedy. 8. Therefore, while dismissing the above writ appeal, we make it clear that none of the observations contained in the impugned judgment shall not stand in the way of the appellants seeking remedy of appeal before the appellate authority by seeking condonation of delay occurred in filing such appeal. If any such appeal is admitted, the appellate authority shall deal W.A. No.114/2020 -:8:- with the matter independently, to the extent it is admitted under law. Sd/- C.K. ABDUL REHIM, JUDGE. Sd/- T.V. ANILKUMAR, JUDGE. ul/- W.A. No.114/2020 -:9:- "