P.V.THOMAS V. THE COMMISSIONER OF INCOME TAX (APPEALS)

WP(C)/39333/2018

AI Insights

The case involves P.V. Thomas, the petitioner, who contested an income tax assessment for the year 2015-2016. The assessment was based on a concession made by the petitioner's authorized representative during a hearing, which was later disputed by the petitioner. The appellate authority upheld the assessment, leading to the filing of a Writ Petition by the petitioner. The main legal contention was whether the concession made by the authorized representative could be contested after the fact. The court decided not to interfere at the writ level, suggesting that the petitioner should pursue the matter further at the Income Tax Appellate Tribunal, emphasizing the availability of an alternative, efficacious remedy.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 761198 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 26-02-2019
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P K R M MENON; JOSE JOSEPH
• Assessee Lawyers: M GOPIKRISHNAN NAMBIAR; JOSON MANAVALAN; K JOHN MATHAI; KURYAN THOMAS; PAULOSE ABRAHAM; P GOPINATH SR
• Keywords: Alternative remedy; Disputed Question of Fact; Income tax assessment; Statutory Appeal; Authorized representative concession
• Section: 143(3); 253

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940 WP(C).No. 39333 of 2018 PETITIONER/S: P.V.THOMAS,POOTHARAYIL HOSUE AYMANAM P.O., KOTTAYAM-686 015. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.) RESPONDENT/S: 1 THE COMMISSIONER OF INCOME TAX (APPEALS) OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS), PUBLIC LIBRARY BUILDING SASTRI ROAD, KOTTAYAM-686 001. 2 THE INCOME TAX OFFICER,WARD-5, KOTTAYAM PUBLIC LIBRARY BUILDING, SASTRI ROAD KOTTAYAM-686 001. BY ADVS. SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 39333 of 2018 2 JUDGMENT The petitioner had his income tax assessed for the year 2015- 2016 under Section 143(3) of the Income Tax Act. The addition is said to have been based on the concession made by the petitioner's authorised representative, who attended the hearing. Questioning that assessment, the petitioner has filed a statutory appeal and invited the Ext.P2 order. Essentially, the appellate authority has held that as the petitioner, through his authorised representative, conceded to the assessment, there cannot be an adjudication of what has already been conceded. Further aggrieved, the petitioner has filed this Writ Petition. 2. In response to the submissions made by the petitioner's counsel, the learned Standing Counsel has submitted that the Writ Petition involves purely a disputed question of fact: has the petitioner's authorised representative conceded to the addition proposed by the assessing authority? Therefore, the petitioner ought to have exhausted the further appellate remedy under Section 253. 3. In reply, the petitioner's counsel has contended that the WP(C).No. 39333 of 2018 3 alleged concession was denied immediately; the petitioner, in fact, communicated to the assessing authority to that effect, as seen from the Ext.P3. But the appellate authority has extracted only the alleged concession, but not the denial which was close on the heels, though. He has also underlined the expansion scope of Article 226 of the Constitution of India and asserted that merely because a suitor has an alternative remedy, this Court need not shut him out from having his grievance redressed. If the suitor could otherwise demonstrate before the Constitutional Court that this case needs urgent redressal, it ought to interfere in the interest of justice. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents. 5. Attractive as the petitioner's submissions are, I am afraid he has travelled the statutory path half way: exhausted one appellate remedy. Then he felt shy of proceeding further. Then he turns around and approaches this Court, laching on to Article 226. 6. As rightly contended by the learned Standing Counsel, there involve disputed questions of fact whether; that is, the petitioner's authorised representative has conceded to the addition WP(C).No. 39333 of 2018 4 and whether that stands nullified because of the petitioner's immediate assertion to the contrary as set out in the Ext.P3. 7. I reckon whatever the relief the petitioner has sought before this Court can as well be granted by the Income Tax Appellate Tribunal. Therefore, the remedy thus available to the petitioner is efficacious, too. 8. Under these circumstances, without adverting to the merits, I close this Writ Petition leaving it open for the petitioner to approach the Appellate Tribunal. As the petitioner has bonafide pursued the litigation till now; for limitation, the Tribunal will exclude the period the petitioner has spent before this Court. Besides, to enable the petitioner to exhaust the appellate remedy, the authorities will defer coercive steps for thirty days from now. Sd/- DAMA SESHADRI NAIDU JUDGE Sd WP(C).No. 39333 of 2018 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 28.6.2017. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 6.8.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS). sd "