VARKEY JACOB V. DEPUTY COMMISSIONER OF INCOME TAX

WA/718/2010

AI Insights

The case involves Varkey Jacob, the legal heir of the late Lucy Kochuvareed, who appealed against the rejection of a refund claim for tax paid on compensation received from the acquisition of a plantation. The original assessments made by the Income Tax Department were later cancelled due to being time-barred. The appellant argued for a refund based on the cancellation of these assessments. However, the learned Single Judge dismissed the claim, citing a Supreme Court decision that the Department is not obliged to grant a refund of tax already paid. The High Court of Kerala upheld this decision, emphasizing that the tax paid was not linked to any specific assessment year due to the time-barred nature of the assessments.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 699066 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 28-02-2012
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax v. Shelly Products and another
• Laws Referred To: 261 ITR 367
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P K R MENON; JOSE JOSEPH
• Assessee Lawyers: E K NANDAKUMAR; A K JAYASANKAR NAMBIAR; K MATHAI; P BENNY THOMAS; P MENON
• Keywords: Assessment; Compensation; Income Tax; Interest; Refund; Writ Appeal
• Section: 148

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 28TH DAY OF FEBRUARY 2012/9TH PHALGUNA 1933 WA.No. 718 of 2010 ( ) IN WPC/19823/2006 ----------------------------------------- AGAINST THE ORDER/JUDGMENT IN WPC.19823/2006 DATED 15-12-2009 APPELLANT(S): ------------ VARKEY JACOB, LEGAL HEIR OF THE LATE LUCY KOCHUVAREED, THATTIL HOUSE, LATIN CHURCH ROAD, TRICHUR-680 001. BY ADVS.SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY.P.THOMAS SRI.P.GOPINATH MENON RESPONDENT(S): -------------- 1. DEPUTY COMMISSIONER OF INCOME TAX (ASST.), CIRCLE II(1), RANGE II, SAKTHAN THAMPURAN NAGAR, TRICHUR-680 001. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE II(1), RANGE II, SAKTHAN THAMPURAN NAGAR, TRICHUR-680 001. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG C.N. RAMACHANDRAN NAIR & BABU MATHEW P. JOSEPH, JJ. ---------------------------------------------------- W.A. No. 718 OF 2010 ----------------------------------------------------- Dated this the 28th day of February, 2012 J U D G M E N T Ramachandran Nair, J Heard counsel for the appellant and the senior counsel appearing for respondents. The acquisition in 1974 of the plantation of assessee's late mother Lucy Kochuvareed, during her life time led to payment of compensation including huge amount of interest. Without even filing a return the late assessee remitted Rs.26,58,000/- towards tax with interest on the compensation amount on 31.8.89. Later Department issued 148 notice and made assessments for several years starting from 1979 onwards spreading over the income for all those years. However, when the assessee filed appeals the assessments were cancelled on account of delay in W.A. No. 718 OF 2010 :2 : completion of the same. It is based on Ext.P6 order cancelling assessments, assessee is claiming refund with interest which was rejected by the learned Single Judge against which this Writ Appeal is filed. The learned Single Judge has relied on the decision of the Hon'ble Supreme Court reported in 261 ITR 367(Commissioner of Income Tax v. Shelly Products and another). During hearing counsel for the appellant submitted that unlike the case decided by the Hon'ble Supreme Court in this case late assessee has not even filed returns. However Senior Standing Counsel submitted that as per the judgment of the Hon'ble Supreme Court the Department is not obliged to grant refund of tax already paid by the assessee. In this case we see that the assessee already remitted Rs.26.58 lakhs without mentioning as to what is the nature of income. If this amount was assessed for the previous year 1989-1990 when tax was paid, then the order W.A. No. 718 OF 2010 :3 : would have been perfectly valid. On the other hand, Department made assessments by spreading over income for 10 years back which led to cancellation of assessment as time barred. We do not find any justification for the appellant to claim refund of tax already paid by the deceased assessee. Consequently the learned Single Judge rightly dismissed the claim, following the judgment of the Hon'ble Supreme Court. Writ Appeal is therefore dismissed as devoid of any merit. Sd/-C.N. RAMACHANDRAN NAIR, JUDGE. Sd/- BABU MATHEW P. JOSEPH, JUDGE. ul/- [True copy] P.S. to Judge. "