MR.GIJOPOOTHANAPRA MATHEWS V. UNION OF INDIA

WP(C)/3847/2020

AI Insights

The case involves Mr. Gijopoothanapra Mathews, the petitioner, who challenged an assessment order issued by the income tax authorities without first appealing to the Commissioner of Income Tax (Appeals). The petitioner argued that the assessment order did not consider his reply to a notice regarding overdue tax deposits and was issued after the statutory deadline. The revenue contended that the petitioner did not adequately respond to the notice and that the issues raised were factual, suitable for appeal rather than judicial review. The court dismissed the petition, emphasizing the availability of a statutory appeal and the absence of a jurisdictional error in the assessment order.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 734357 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 11-02-2020
• Assessment Year: misc
• Other Referred Cases: T.C.Manual Vs. Income Tax Officer, Commissioner of the Agricultural Income Tax Vs. Kappumalai Estate
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; P VIJAYAKUMAR
• Assessee Lawyers: SUKUMAR OOMMEN; SHERRY OOMMEN
• Keywords: Appeal; Assessment Order; Income Tax; Statutory period; Demonitorising period
• Section: 144; 142(1); 69; 133

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941 WP(C).No.3847 OF 2020(E) PETITIONER: MR.GIJOPOOTHANAPRA MATHEWS, AGED 36 YEARS, DAMS, 62/2727, RVD TOWER, RAMANKUTTY ACHAN ROAD, ERNAKULAM, KERALA-682016 BY ADVS. SRI.SUKUMAR NAINAN OOMMEN SRI.SHERRY SAMUEL OOMMEN RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI-110001 2 INCOME -TAX OFFICER, WARD-2, KOTTAYAM,PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM-686001 3 THE JOINT COMMISSIONER OF INCOME -TAX, KOTTAYAM RANGE PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM-686001 OTHER PRESENT: SC JOSE JOSEPH;ASGI P.VIJAYAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.3847 OF 2020 -2- JUDGMENT The petitioner assessee has in the instant writ petition impugned the assessment order without availing the remedy of appeal before the competent authority, Commissioner of Income Tax (Appeals) on following accounts: i)The assessment order reveals non discussion of the Ext.P8 reply submitted in response to Ext.P3 notice dated 16.05.2019 which pertain the overdue deposit of the tax receipts with effect from 18.11.2016 to 13.12.2016, during the demonitorising period. ii) The aforementioned notice was received by the petitioner in the month of June and a reply furnished on 09.12.2019. iii) The assessment order is to be passed within the prescribed period which expired on 31.12.2019, but was despatched on WP(C).No.3847 OF 2020 -3- 16.01.2020 as evidenced from the postal cover, Ext.P10. In support of the aforementioned contentions reliance has been led to the decision of this Court in T.C.Manual Vs. Income Tax Officer [1974 (19) ITR Kerala 148] where it has been held that in case the Income Tax Authorities resort to the procedures under Section 144 of the Income Tax Act, assesssee is required to be afforded in opportunity of hearing, apart from issuance of a specific show- cause notice, which has not been undertaken in the present case. iv) The aforementioned judgment was passed keeping in view the parameters laid down the instructions in Section 69 of the Income Tax Act. As far as the order has to be passed within a statutory period reliance has been laid to the judgment of this Court in Commissioner of the Agricultural Income Tax Vs.Kappumalai Estate [1998 (234) ITR 187 Kerala]. WP(C).No.3847 OF 2020 -4- 2. Per Contra, learned counsel for the revenue submits that the petitioner did not respond to the notice seeking the information with regard to the entries furnished to the proceedings as laid down under Section 133 of the Income Tax Act. Paragraph No.7 of the assessment order reveals everything, even the income tax return was also filed in the month of July, 2019. All these points are the question of fact which can be raised in the appeal as the order impugned cannot be set to be exercised without jurisdiction warranting the interference under Article 226 of the Constitution of India. 3. I have heard the counsel for the parties who prays seeking interference, by bringing the case within the realm of judicial review under Article 226 of the Constitution of India. The contention of the counsel in trying the mention of this Court to Ext.P8 the account statement in the reply dated 09.12.2019 cannot be taken as even the gossipal truth, for it is WP(C).No.3847 OF 2020 -5- unattested copy not allotted by a Chartered Accountant. 4. Petitioner assessee became wiser by reflecting the aforementioned entries in the return filed. Post issues of notice Ext.P3 dated 16.05.2019, as for the sake of repetition the return was filed on July, 2019. 5. No material has placed on record in establishing that in response to the notice allegedly received in June, the Petitioner had given the date of reply to counter the findings recorded in the assessment. 6. In my view, all these points can very well be urged and taken in case the assessee chooses to prefer an appeal that is statutory remedy available under the Income Tax Act, 1961. The judgments aforementioned in such circumstances cannot come to the rescue of the petitioner as they have based upon the facts and circumstances of the case. Other issue WP(C).No.3847 OF 2020 -6- qua the order passed belatedly and not in consonance with the statutory provisions of the Act, can also be looked into by the appellate authority, which is enjoined the obligation to examine the veracity of the assessment order. This writ petition is accordingly dismissed. Sd/- AMIT RAWAL vv JUDGE WP(C).No.3847 OF 2020 -7- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A COPY OF THE FRANCHISEE AGREEMENT WITH MESSRS DAMS DATED 01.02.2016 EXHIBIT P2 A TRUE COPY OF THE INVOICE RAISED BY DAMS ON THE STUDENT ALONG WITH A COPY OF TH INVOICE RAISED BY THE PETITIONERS ON DAMS EXHIBIT P3 NOTICE DATED 16.05.2019 RECEIVED BY THE PETITIONER IN JUNE 2019 EXHIBIT P4 COPY OF NOTICE DATED 05.02.2018 UNDER SECTION 142(1) OF THE ACT EXHIBIT P5 COPY OF NOTICE DATED 08.08.2018 EXHIBIT P6 COPY OF THE RETURN OF INCOME FILED BY THE PETITIONER FOR THE ASSESSMENT YEAR 2017-18 ALONG WITH THE LETTER DATED 08.07.2019 EXHIBIT P7 COPY OF THE LETTER DATED 16.07.2019 SENT BY THE 2ND RESPONDENT, WHICH WAS RECEIVED BY THE PETITIONER IN NOVEMBER 2019 EXHIBIT P8 REPLY FILED BY THE PETITIONER DATED 05.12.2019 ON 09.12.2019 EXHIBIT P9 ORDER OF ASSESSMENT BEARING REFERENCE NUMBER ITBA/AST/S/144/2019- 20/1023516391(1) DATED 31.12.2019, WHICH WAS SERVED ON THE PETITIONER ON 16.01.2020. EXHIBIT P10 A COPY OF THE POSTAL COVER AND THE TRACKING DETAILS //TRUE COPY// PA TO JUDGE "