OLANGATTIL IBRAHIM VINISH FAISAL, THRISSUR V. THE DEPUTY COMMISSIONER OF INCOME TAX

WP(C)/19494/2022

AI Insights

The petitioner, Olangattil Ibrahim Vinish Faisal, challenged an assessment order (Ext.P12) issued under Section 147 read with 144C of the Income Tax Act for the assessment year 2014-15. The petitioner argued that the order was issued without jurisdiction as he was not an 'eligible assessee' for that year, and thus the procedure under Section 144C was not applicable. The respondents contended that the provisions of Section 144C apply to any order passed in respect of an eligible assessee on or after 01.10.2009, regardless of the assessment year. The court found that the petitioner had an effective alternative remedy through an appeal and did not make out a case for interference under Article 226 of the Constitution at this stage.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 685960 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-06-2022
• Assessment Year: misc
• Laws Referred To: Income Tax Act, Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: DIVYA RAVINDRAN; LINCY GLANCY
• Keywords: Alternative remedy; Assessment Order; Dispute Resolution Panel; Eligible Assessee; Jurisdiction; Writ petition
• Section: 147; 144C; 6(6); 226

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 21ST DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 WP(C) NO. 19494 OF 2022 PETITIONER/S: OLANGATTIL IBRAHIM VINISH FAISAL, AGED 34 YEARS OLANGATTIL HOUSE, ANUGRAHA, POST OFFICE PUVATHOR, CHAVAKKAD, THRISSUR-680508, KERALA. BY ADVS. DIVYA RAVINDRAN LINCY GLANCY RESPONDENT/S: 1 THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE, INTERNATIONAL TAXATION, CENTRAL REVENUE BUILDING, I.S PRESS ROAD, KOCHI-682018. 2 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. OTHER PRESENT: SRI. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).19494/22 2 JUDGMENT Petitioner has approached this court challenging Ext.P12 order of assessment dated 28.05.2022 issued under Section 147 read with 144C of the Income Tax Act. 2. The learned counsel appearing for the petitioner submits that though the petitioner has an effective alternative remedy by way of appeal, the petitioner has chosen to approach this court through a writ petition under Article 226 of the Constitution of India since Ext.P12 assessment order is issued without jurisdiction. It is pointed out that Ext.P12 order relates to assessment year 2014-15. It is pointed out that the procedure contemplated by Section 144C of the Income Tax Act was not applicable to the petitioner for the assessment year 2014-15 as the petitioner was not an “eligible assessee” as far as the assessment year 2014-15 is concerned. It is submitted that the entire procedure followed by the Assessing Officer is, therefore, non est in law and without jurisdiction. It is submitted that, in such cases, it is open to the petitioner to approach this court under Article 226 of the Constitution of India, notwithstanding the availability of an effective alternative remedy. 3. The learned Standing Counsel appearing for the respondent department refers to the provisions of Section 144C and points out that the provisions of Section 144C apply not with reference to the assessment year but with reference to any order passed or proposed to be passed in respect of an W.P.(C).19494/22 3 eligible assessee on or after 01.10.2009. It is submitted that even if the petitioner became an eligible assessee after the assessment year 2014-15, the procedure under Section 144C was correctly followed by the Assessing Officer in respect of the petitioner. It is submitted that the petitioner had an option of filing objections before the Dispute Resolution Panel following receipt of a draft assessment order. It is pointed out that, despite receiving such an opportunity, the petitioner did not file any objection before the Dispute Resolution Panel and instead filed Ext.P11 objection before the Assessing Officer. It is also pointed out that on facts the order of the Assessing Officer cannot be faulted in law as the Assessing Officer has correctly found that the petitioner was a resident in India having regard to the provisions of Section 6(6) of the Income Tax Act. 4. Having heard the learned counsel for the petitioner and the learned Standing Counsel for the department, I am of the view that the petitioner has not made out a case for interference at this stage in exercise of jurisdiction under Article 226 of the Constitution of India. The petitioner has an effective alternative remedy by way of appeal before the Appellate Authority. It is clear that the time limit for filing a statutory appeal has also not expired. Therefore, this writ petition will stand disposed of directing that if the petitioner files a statutory appeal against Ext.P12 along with a stay petition before the Appellate Authority within the period of limitation, any demand pursuant to Ext.P12 order shall not be enforced against the petitioner till a decision is taken on the stay petition to be filed by the petitioner. I make it clear that I have not W.P.(C).19494/22 4 expressed any opinion on merits on the contentions raised by either side and it is for the Appellate Authority to decide the matter on merits untrammelled by any observation contained in this judgment. The writ petition is disposed of as above. Sd/- GOPINATH P. JUDGE okb/21.6.22 //True copy// PS to Judge W.P.(C).19494/22 5 APPENDIX OF WP(C) 19494/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT UNDER SECTION 148 OF THE ACT, DATED 31.3.2021. Exhibit P2 TRUE COPY OF THE NOTICE UNDER SECTION 143(2) ISSUED BY THE 1ST RESPONDENT DATED 30.6.2021. Exhibit P3 TRUE COPY OF THE REPLY DATED 2.8.2021. Exhibit P4 TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT UNDER SECTION 142(1) DATED 26.11.21 Exhibit P5 TRUE COPY OF THE NOTICE DATED 14.1.2022, ISSUED BY THE 1ST RESPONDENT. Exhibit P6 TRUE COPY OF THE NOTICE DATED 15.2.2022 ISSUED UNDER SECTION 142(1) BY THE 1ST RESPONDENT. Exhibit P7 TRUE COPY OF THE PAGE IN THE INCOME TAX PORTAL SHOWING THE REPLY FILED BY THE PETITIONER DATED 7.2.2022 AND 20.2.2022. Exhibit P8 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 28.02.2022. Exhibit P9 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 3.3.2022. Exhibit P10 TRUE COPY OF THE DRAFT ASSESSMENT ORDER ISSUED UNDER SECTION 144C OF THE ACT DATED 7.3.2022. Exhibit P11 TRUE COPY OF THE OBJECTION SUBMITTED AGAINST THE DRAFT ORDER DATED 6.4.2022. Exhibit P12 TRUE COPY OF THE ASSESSMENT ORDER PASSED UNDER SECTION 147 R.W.S 144C DATED 28.5.2022 ISSUED BY THE 1ST RESPONDENT. "