SHABIR AHAMED V. UNION OF INDIA

WP(C)/29532/2016

AI Insights

The petitioner, Shabir Ahamed, sought a writ of mandamus to direct the 2nd respondent, the Regional Passport Officer, to consider his application for an ECNR stamp on his passport. The petitioner argued that he qualifies for the ECNR stamp as a regular taxpayer, which exempts him from emigration clearance for certain countries. However, the respondents contended that the petitioner had not been a regular taxpayer, as evidenced by his sporadic tax payments and returns. The court found that the endorsement on the petitioner's application did not amount to a decision and thus ordered a fresh consideration of the application.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 678397 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 06-10-2016
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: N NAGRESH
• Assessee Lawyers: S PRASAD; MINI A
• Keywords: Income Tax; Passport; Emigration Clearance Not Required (ECNR); Visa; Emigration Check Required

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938 WP(C).No. 29532 of 2016 (N) ---------------------------- PETITIONER: ----------- SHABIR AHAMED, S/O. MOOSA KHAN, AGED 34 YEARS, RESIDING AT 10/2016, DARSA STREET, PALAKKAD-671001. BY ADVS.SRI.S.KRISHNA PRASAD (AYALUR) SMT.MINI.V.A. RESPONDENT(S): -------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, EXTERNAL AFFAIRS, NEW DELHI-21. 2. THE REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, ERNAKULAM-682036. 3. THE PASSPORT OFFICER, PASSPORT SEVA KENDRA, 2ND FLOOR, ROUDHA TOWERS, POONTHOLE ROAD, THRISSUR-680004. R1-R3 BY ADV. SRI.N.NAGARESH, ASG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.V. WP(C).No. 29532 of 2016 (N) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT NO. H.4338464 OF THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE PAN CARD NO. BAQPM 3704G OF THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE VISA ISSUED BY THE UNITED ARAB EMIRATES MINISTRY OF INTERIOR. EXHIBIT P4 TRUE COPY OF THE VISA ISSUED BY THE STATE OF QATAR, MINISTRY OF INTERIOR. EXHIBIT P5 TRUE COPY OF THE INCOME TAX RETURNS ACKNOWLEDGMENT FOR THE YEARS 2008-2009. EXHIBIT P6 TRUE COPY OF THE INCOME TAX RETURNS ACKNOWLEDGEMENT FOR THE YEARS 2014-2015. EXHIBIT P7 TRUE COPY OF THE INCOME TAX RETURNS ACKNOWLEDGEMENT FOR THE YEARS 2015-16. EXHIBIT P8 TRUE COPY OF THE INCOME TAX RETURNS ACKNOWLEDGEMENT FOR THE YEARS 2016-17. EXHIBIT P9 TRUE COPY OF THE APPLICATION CUM APPOINTMENT RECEIPT DATED 16-8-2016. RESPONDENT(S)' EXHIBITS NIL ----------------------- /TRUE COPY/ P.A.TO JUDGE K.V. SHAJI P. CHALY, J. -------------------------------------------------- W.P.(C) No.29532 of 2016 ----------------------------------------------- Dated this the 6th day of October, 2016 JUDGMENT This writ petition is filed by the petitioner seeking direction to the 2nd respondent to consider Ext.P9 application of the petitioner to get the Emigration Clearance Not Required (ECNR) stamp in his Passport, and for other related reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner allegedly is a businessman by profession and for business purposes, he visits foreign countries. During June, 2016 he had visited Dubai and Quatar for his business purposes. According to the petitioner, Emigration clearance is necessary to visit certain countries. That apart, it is stated, Income Tax payees are exempted from emigration clearance and ECNR stamp is to be affixed in the Passport. It is in this background, petitioner has submitted Ext.P9 application. According to the petitioner, in spite of the earnest efforts of the petitioner, no orders are passed by the 2nd respondent, and it is in this backdrop, seeking appropriate direction, this writ W.P.(C) No.29532 of 2016 2 petition is filed. 3. Respondents 1 to 3 have filed a joint statement refuting the allegations as well as claims and demands made by the petitioner. It is also stated, petitioner was issued with endorsement of emigration status as “Emigration Check Required”, as he has not passed 10th Class and above. On scrutiny of the income tax return submitted by the petitioner for the year 2008-09, 2014-15, 2015-16 and 2016-17, it is noticed as follows: “The return for the year 2008-09 shows tax remittance of Rs.660/-, without showing any deductions. However, no proof of actual payment of income tax has been furnished. Further the returns for the years 2014-15, 2015-16 and 2016-17 has been furnished by paying a token amount of tax without showing the deductions in the returns. It is to be noted that the returns for the year 2014-15 and 2015-16 was submitted and tax paid only on 15.08.2016 and the return for the year 2016-17 was submitted and tax paid on 16.08.2016”. 4. Therefore, it is submitted by respondents that the statement in paragraph 5 of the writ petition that petitioner is regularly paying income tax from 2008 is false and misleading. After 2008-09, petitioner has submitted returns and remitted W.P.(C) No.29532 of 2016 3 tax only on 15.08.2016 and 16.08.2016 for the three years period, 2014-15, 2015-16 and 2016-17 to apply for ECNR in his Passport. It is also stated, if the petitioner was a regular tax payer, he would have submitted the returns during the concerned financial years and remitted the tax within the stipulated time period. Apart from the same, other contentions are put forth by respondents 1 to 3 to justify the stand adopted by the said respondent for non-consideration of Ext.P9 application submitted by the petitioner. 5. Heard learned counsel for the petitioner and learned Assistant Solicitor General appearing for the respondents, and perused the documents on record and the pleadings put forth by the respective parties. 6. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. However, according to the respondents, petitioner is not entitled to get ECNR affixed on the Passport, since petitioner is not a bonafide income tax payer, especially due to the fact, petitioner has not filed returns, and has only made nominal payments to make it appear him to be an income tax payer. Therefore, learned Assistant Solicitor General contended, petitioner failed to make W.P.(C) No.29532 of 2016 4 out any case warranting interference of this Court. So also, in that view of the matter, consideration of Ext.P9 would become a futile exercise, is the contention. 7. Anyhow, taking note of the respective submissions made across the Bar, I am of the considered opinion that Ext.P9 application submitted by the petitioner is a statutory application which requires the authority to consider the same and pass a reasoned order. Learned counsel for the respondents pointed out that an endorsement is seen in Ext.P9 application, with respect to the issue on payment of income tax returns, which seems to be an order on Ext.P9 application. If the said endorsement made in Ext.P9 is an order passed on Ext.P9, in my considered opinion, the same cannot be sustained, and therefore de hors any endorsement made in Ext.P9, the application shall be considered/re-considered by the 2nd respondent in accordance with law and pass a reasoned order accordingly, after providing an opportunity of hearing to the petitioner to contest the proceedings. 8. Therefore, there will be a direction to the 2nd respondent to take on board Ext.P9 and consider the same in accordance with law, and pass appropriate orders after W.P.(C) No.29532 of 2016 5 providing an opportunity of hearing to the petitioner, within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/- SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/- 06.10.2016 "