By Advs.harisankar v. Menonmeera V.menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 4 DAY OF JULY 2022 / 13TH ASHADHA, 1944 WA NO. 814 OF 2022 WP(C) 19803/2022 OF HIGH COURT OF KERALA APPELLANT/S: K.A.RAUF,AGED 64 YEARS "SHELTER", JAYANTHI NAGAR HOUSING COLONY, P.T. USHA ROAD, KOZHIKODE BY ADVS.HARISANKAR V. MENONMEERA V.MENON RESPONDENT/S: 1THE ASSISTANT COMMISSIONER OF INCOME TAXCENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), KOZHIKODE - 673 001.CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), KOZHIKODE - 673 001. 2THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1 (1), AYAKAR BHAVAN,KOZHIKODE - 673 001.CIRCLE 1 (1), AYAKAR BHAVAN,KOZHIKODE - 673 001. 3THE PRINCIPAL COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN, KOZHIKODE - 673 001.AAYAKAR BHAVAN, KOZHIKODE - 673 001. 4THE DY. COMMISSIONER OF INCOME TAX,CENTRAL CIRCLE - 2, KOZHIKODE - 673 001.CENTRAL CIRCLE - 2, KOZHIKODE - 673 001. ADV.JOSE JOSEPH, SC INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON04.07.2022,ALONG WITH WA.815 & 816/2022. THE COURT ON THESAME DAY DELIVERED THE FOLLOWING: -2- IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 4 DAY OF JULY 2022 / 13TH ASHADHA, 1944WA NO. 815 OF 2022 WP(C) 19910/2022 OF HIGH COURT OF KERALAAPPELLANT/S: K.A.RAUF,AGED 64 YEARS "SHELTER", JAYANTHI NAGAR HOUSING COLONY, P.T. USHA ROAD, KOZHIKODE. BY ADVS.HARISANKAR V. MENONMEERA V.MENONK.KRISHNASREEJITH R.NAIR RESPONDENT/S: 1THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), KOZHIKODE - 673 001.CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), KOZHIKODE - 673 001. 2THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1 (1), AYAKAR BHAVAN, KOZHIKODE - 673 001.CIRCLE 1 (1), AYAKAR BHAVAN, KOZHIKODE - 673 001. 3THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KOZHIKODE - 673 001.AAYAKAR BHAVAN, KOZHIKODE - 673 001. 4THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 2, KOZHIKODE - 673 001. ADV.JOSE JOSEPH, SC INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON04.07.2022, ALONG WITH WA.814 & 816/2022. THE COURT ON THESAME DAY DELIVERED THE FOLLOWING: -3- IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 4 DAY OF JULY 2022 / 13TH ASHADHA, 1944WA NO. 816 OF 2022 WP(C) 19804/2022 OF HIGH COURT OF KERALAAPPELLANT/S: K A RAUF,AGED 64 YEARS"SHELTER", JAYANTHI NAGAR HOUSING COLONY, P.T. USHA ROAD, KOZHIKODE.BY ADVS.HARISANKAR V. MENONMEERA V.MENON K.KRISHNA RESPONDENT/S: 1THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), KOZHIKODE - 673 001.KOZHIKODE - 673 001. 2THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1 (1), AYAKAR BHAVAN, KOZHIKODE - 673 001. 3THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KOZHIKODE - 673 001. 4THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 2, KOZHIKODE - 673 001. ADV.JOSE JOSEPH, SC INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON04.07.2022,ALONG WITH WA.814 & 815/2022. THE COURT ON THESAME DAY DELIVERED THE FOLLOWING: WA 814, 815 & 816/2022 -4- S.V.BHATTI& BASANT BALAJI, JJ. - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - WRIT APPEAL Nos.814, 815 & 816 of 2022 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - JUDGMENT (Dated this the 4[th] day of July, 2022) Basant Balaji J., The appellant in W.A.Nos.814, 815 and 816 of 2022 is the common petitioner in W.P.(C.) Nos.19803, 19910 and 19804 of 2022 respectively. The appellant challenges theorder of the assessments for the years 2009-2010, 2007-2008 and 2008-2009 respectively. 2. The assessment orders were challenged before the THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON04.07.2022,ALONG WITH WA.814 & 815/2022. THE COURT ON THESAME DAY DELIVERED THE FOLLOWING: WA 814, 815 & 816/2022 -4- S.V.BHATTI& BASANT BALAJI, JJ. - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - WRIT APPEAL Nos.814, 815 & 816 of 2022 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - JUDGMENT (Dated this the 4[th] day of July, 2022) Basant Balaji J., The appellant in W.A.Nos.814, 815 and 816 of 2022 is the common petitioner in W.P.(C.) Nos.19803, 19910 and 19804 of 2022 respectively. The appellant challenges theorder of the assessments for the years 2009-2010, 2007-2008 and 2008-2009 respectively. 2. The assessment orders were challenged before the first appellate authority. The first appellate authority allowed the appeals and the revenue took up the matterbefore the Tribunal. The Tribunal remanded the matter for WA 814, 815 & 816/2022 -5- fresh consideration to the assessing authority. Thereafter, the appellant filed W.P.(C) No.25978 of 2020 when theassessing authority proceeded to pass assessment without giving the appellant an opportunity of cross examine aparticular witness. This court, by judgment dated25.11.2020, quashed the assessment order and directed the Assistant Commissioner of Income Tax Circle - I(1) topass fresh orders after affording an opportunity to crossexamine. 3. The order of the Tribunal remanding the matter to the Assessment Authority was challenged before this court by filing I.T.Appeal No.55 of 2018 and connected cases. Those appeals were dismissed by order dated 10.3.2022. The appellants challenged Ext.P15 Order of the DeputyCommissioner of Income Tax, Circle -2, Kozhikode, WA 814, 815 & 816/2022 -6- wherein the application filed seeking 7 days time to cross examine one Mr.U K Mohan Raj was declined and theorder dated 30.12.2019 from the Assistant Commissionerof Income Tax was confirmed. 4. The counsel for the appellant submits that this court by judgment in W.P.(C) No.978 of 2020, ordered to pass fresh orders within a period of three months from the dateof receipt of the judgment. The second respondent issuedsummons dated 10.2.2021 under Section 131 Income Tax Act for personal attendance for cross examination. He replied on 11.2.2021, seeking adjournment of crossexamination along with the medical certificate. He alsosubmitted that he is not able to travel to Kerala as hisresidence is in Karnataka and the examination may beconducted by video conferencing or personal examination WA 814, 815 & 816/2022 -7- at his residence in Karnataka. Thereafter, the 2[nd] respondent issued another letter on 18.2.2021 to the appellant to cross-examine the said person through video conference on3.3.2021. On 22.2.2021, a letter was issued on behalf of the appellant by M/s.Raghunath Associates that thephysical appearance of Sri.Mohan Raj is highly essentialand cross examination through video conferencing will notbe effective and prayed for time till Sri.Mohan Raj iscapable of undertaking travel to Calicut. Another letter wasissued on 26.2.2021 to the appellant to enquire as towhether the appellant is ready to cross-examine Sri.MohanRaj on 1.3.2021 and if no intimation is received, it will bedeemed that he has forfeited his right to cross-examinationand assessment orders will be passed accordingly. On1.3.2021 the appellant requested for some more time for WA 814, 815 & 816/2022 -8- cross-examination and prayed that at least 7 days time may be granted. The 3[rd] respondent, by the impugned order, rejected the said request and confirmed the assessmentorder dated 30.12.2019. 5. Ext.P15 is an appealable order. The counsel for the appellant submitted that the learned Single Judge has WA 814, 815 & 816/2022 -8- cross-examination and prayed that at least 7 days time may be granted. The 3[rd] respondent, by the impugned order, rejected the said request and confirmed the assessmentorder dated 30.12.2019. 5. Ext.P15 is an appealable order. The counsel for the appellant submitted that the learned Single Judge has failed to note that though the judgment in W.P.(C) No.25978 of 2020 was delivered on 25.11.2020, the firstnotice following the judgment was issued to the appellantonly during the month of February 2021 and the appellant hurriedly completed the assessment as the time limit fixedby this court was to expire on 7.3.2021. 6. The learned Single Judge dismissed the Writ Petition holding that the appellant may file appeal againstthe assessment orders in question raising the contention that WA 814, 815 & 816/2022 -9- he was denied the opportunity to cross examine the witness as directed by this court. On going through the impugnedorder Ext.P15, as well as the judgment of the learned SingleJudge, we are of the firm opinion that since the appellanthas got statutory remedy by way of an appeal, the learnedSingle Judge was right in refusing to invoke the writjurisdiction under Article 226 of the Constitution of India.We do not find any ground to interfere with the judgmentof the learned Single Judge as the appellant has analternative and efficacious remedy by way of an appeal. In the result, these Writ Appeals stand dismissed. sd/-S.V.BHATTI, JUDGE dl/ sd/- BASANT BALAJI, JUDGE