Simon Jphilp V. Agricultural Income Tax and Sales Tax Officer, Changanassery and Commissioner of Agricultural Income Tax, Thiruvananthapuram and State of Kerala, represented by its Chief Secretary to Government, Secretariat, Thiruvananthapuram

OP/21712/1999

AI Insights

The case involves two original petitions filed by Simon Jphilp against the assessment orders issued by the Agricultural Income Tax and Sales Tax Officer, Changanassery, for the assessment years 1996-97 and 1997-98. The petitioner sought to quash the assessment orders and requested the assessments to be completed at the compounding rate as per Section 13 of the Agricultural Income Tax Act, 1991. The main contention was the eligibility for compounding concerning an extent of land co-owned with his mother and brother, which was initially granted but later contested by the authorities. The court had previously stayed the assessments pending the outcome of a related petition (O.P.No.10318/96), which was later disposed of, leaving the petitioner to pursue appeals against the assessments.

• Counselvise Citation: [2008] 140 COUNSELVISE.COM (IT) 793820 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 17-03-2008
• Assessment Year: misc
• Other Referred Cases: O.P.No.10318/96
• Laws Referred To: Agricultural Income Tax Act, 1991
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: T B REMANI
• Assessee Lawyers: ANIL NAIR
• Keywords: Agricultural income-tax; Assessment Order; Writ petition; Compounding Rate
• Section: 13

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 OP.No. 21712 of 1999(I) ----------------------- PETITIONER: ----------- SIMON JPHILIP, CHEMPITHANAM, TOTTAKKAD, KOTTAYAM DISTRICT. BY ADV. SRI ANIL D. NAIR RESPONDENTS: ------------ 1. AGRICULTURAL INCOME TAX AND SALES TAX OFFICER, CHANGANASSERY. 2. COMMISSIONER OF AGRICULTURAL INCOME TAX, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI T.B.REMANI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/03/2008, ALONG WITH OP NO.9983 OF 2002,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.35812/99 IN OP.NO.21712/99 --------------- DISMISSED 17/3/2008 Sd/- P.R.RAMAN, JUDGE. APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE IST RESPONDENT FOR 1995-96 DATED 22/11/95 TO THE PETITIONER. EXT.P2 TRUE COPY OF THE NOTICE ISSUED BY THE IST RESPONDENT TO THE PETITIONER DATED 25/2/96 FOR 1996-97. EXT.P3 TRUE COPY OF THE NOTICE ISSUE3D BY THE IST RESPONDENT TO THE PETITIONER FOR 1997-98 DATED 29/1/97. EXT.P4 TRUE COPY OF THE PETITIONER'S LETTER TO THE IST RESPONDENT DATED 20/2/97. EXT.P5 TRUE COPY OF THE ASSESSMENT ORDER FOR 1996-97 ISSUED BY THE IST RESPONDENT TO THE PETITIONER DATED 30/6/99. EXT.P6 TRUE COPY OF THE ASSESSMENT ORDER FOR 1997-98 ISSUED BY THE IST RESPONDENT TO THE PETITIONER DATED 30/6/99. EXT.P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S MOTHER ON 29/6/96. EXT.P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S BROTHER ON 29/6/1996. EXT.P9 TRUE COPY OF THE STAY ORDER ISSUED BY THE HON'BLE HIGH COURT IN O.P.NO.10318/96 DATED 28/6/1996. P.R.RAMAN, J. --------------------------- O.P.NOS.21712 OF 1999 & 9983 OF 2002 ---------------------------- Dated this the 17th day of March, 2008 JUDGMENT Both these original petitions are filed by the same assessee and common issue arises and hence they are disposed of by a common judgment. In O.P.No.21712/99 the relief sought for is to quash Exts.P5 and P6 and also for a direction to complete the assessment for the assessment years 1996-97 and 1997-98 at the compounding rate as per Section 13 of the Agricultural Income Tax Act, 1991. 2. According to the petitioner, he owns a rubber plantation besides he has 1/3 right in the family property standing in the name of his later father. The other co-owners are his mother and brother. During the previous year 1995-96 he applied for compounding under Section 13 of the Agricultural Income Tax Act and the Assessing Officer completed the assessment as per Ext.P1 allowing the application. Subsequently, the lst respondent proposed to withdraw the compounding granted under Ext.P1 on the ground that the petitioner is not eligible for compounding in respect of an extent of 1.72 acres of land, which even according to him, is admittedly owned by him -2- O.P.Nos.21712/99 & 9983/2002 along with others and since no compounding application was made by other co-owners. That was challenged by filing O.P.No.10318/96. Subsequently, for the year in question assessments were completed rejecting his claim for compounding under Section 13 of the Act. In view of the pendency of O.P.No.10318/96 he straight away approached this Court by filing the original petition seeking to quash the assessment orders for the two years as referred to above. 3. Similar is the case in O.P.No.9983/2002. The assessment order in respect of which the assessment has completed is sought to be quashed in the said original petition. It is now brought to my notice that O.P.No.10318/96 was already disposed of by this court by judgment dated 31st August, 2005 leaving open the right of the petitioner to file his objection. There was also a direction that the matter will be heard by the authorities concerned and dispose of the same in accordance with law. As such the main ground on which the original petition is filed before this Court circumventing the statutory remedies is not now available to the petitioner, in view of the disposal of O.P.No.10318/96 in the manner as indicated above, without going into the merits of the contention raised. Since the challenge made in these writ petitions is against the assessment orders made by the Assessing Officer concerned, the petitioner has got an efficacious or alternative remedy by filing an appeal. But since these writ -3- O.P.Nos.21712/99 & 9983/2002 petitions were admitted and were pending before this Court, in view of the pendency of the earlier O.P.No.10318/96, I think it is only proper that the petitioner be given an opportunity to move before the Appellate Authority challenging the orders impugned in these two original petitions. True that because of the pendency of these matters before this court the statutory time for filing the appeal has already expired. But it has to be noticed that the petitioner has been bona fide prosecuting the matter by filing a writ petition, which was entertained by this Court and granted an interim stay also. In the circumstances, the period during which these two writ petitions are pending will stand excluded from the period of limitation in filing the appeal. The petitioner is given an opportunity to file appeals within 30 days from today and if such appeals are filed, the same shall be disposed of on merits, as expeditiously as possible, at any rate within a period three months from the date of receipt of the appeals. The interim stay granted by this Court will continue, till the disposal of the appeals. If, however, no such appeals ares filed within the aforesaid period, it will be open to the authority to proceed pursuant to the assessment orders impugned in these original petitions. Original Petitions are disposed of as above. P.R.RAMAN, Judge. kcv. -4- O.P.Nos.21712/99 & 9983/2002 "