By Advs.harisankar v. Menonmeera V.menonk.krishnar.sreejith

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22 DAY OF JUNE 2022 / 1ST ASHADHA, 1944WP(C) NO. 19910 OF 2022 PETITIONER: K.A.RAUF,AGED 64 YEARS,"SHELTER", JAYANTHI NAGAR HOUSING COLONY, P.T. USHA ROAD, KOZHIKODE - 673 032. BY ADVS.HARISANKAR V. MENONMEERA V.MENONK.KRISHNAR.SREEJITH RESPONDENTS: 1THE ASSISTANT COMMISSIONER OF INCOME TAX,CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), 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.BY SRI. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON22.06.2022, ALONG WITH WP(C).19803/2022, 19804/2022, THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22 DAY OF JUNE 2022 / 1ST ASHADHA, 1944WP(C) NO. 19803 OF 2022 PETITIONER: K.A.RAUFAGED 64 YEARS"SHELTER", JAYANTHI NAGAR HOUSING COLONY, P.T.USHA ROAD, KOZHIKODE - 673 032. "SHELTER", JAYANTHI NAGAR HOUSING COLONY, BY ADVS.HARISANKAR V. MENONMEERA V.MENON RESPONDENTS: 1THE ASST COMMISSIONER OF INCOME TAX ,CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK),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 TAXCENTRAL CIRCLE-2, KOZHIKODE - 673 001.BY SRI. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 22.06.2022, ALONG WITH WP(C).19910/2022 ANDCONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 22 DAY OF JUNE 2022 / 1ST ASHADHA, 1944WP(C) NO. 19804 OF 2022 PETITIONER: K A RAUF,AGED 64 YEARS,P.T. USHA ROAD, KOZHIKODE- 673 032.BY ADVS.HARISANKAR V. MENONMEERA V.MENON "SHELTER", JAYANTHI NAGAR HOUSING COLONY, RESPONDENTS: 1THE ASST.COMMISSIONER OF INCOME TAX ,CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), 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.BY SRI. JOSE JOSEPH (SC) CIRCLE 1 (1), AYAKAR BHAVAN, THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 22.06.2022, ALONG WITH WP(C).19910/2022 ANDCONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT [WP(C) Nos.19910/2022, 19803/2022, 19804/2022] "SHELTER", JAYANTHI NAGAR HOUSING COLONY, RESPONDENTS: 1THE ASST.COMMISSIONER OF INCOME TAX ,CENTRAL CIRCLE-2, AAYAKAR BHAVAN (NORTH BLOCK), 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.BY SRI. JOSE JOSEPH (SC) CIRCLE 1 (1), AYAKAR BHAVAN, THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 22.06.2022, ALONG WITH WP(C).19910/2022 ANDCONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: JUDGMENT [WP(C) Nos.19910/2022, 19803/2022, 19804/2022] These three writ petitions are filed challenging orders ofassessment in respect of three assessment years namely,2007-2008, 2008-2009 and 2009-2010. It appears that thepetitioner suffered earlier orders of assessment, which werechallenged by the petitioner before the first appellateauthority. The first appellate authority had allowed theappeals and had granted relief to the petitioner by settingaside the additions made in the orders of assessment inrespect of the aforesaid years. The Revenue carried thematter in appeal to the Tribunal and the Tribunal remandedthe matter for the fresh consideration of the AssessingAuthority. The Assessing Authority proceeded to passassessment orders following the remand without affording anopportunity of cross examination of a particular witness tothe petitioner. This was challenged before this Court and thiscourt through judgment dated 25.11.2020 in W.P.(C)No.25978of 2020 found that the failure to provide an opportunity tocross examine the witness vitiates the proceedings and setaside the assessment orders and remanded the matter to the assessing authority for fresh consideration after affording anopportunity of cross examination to the petitioner. At thispoint it must be noted that the order of the Tribunalremanding the matter to the Assessing Authority had beenchallenged before this Court by the petitioner by filing ITANo.55 of 2018 and connected cases. Those income taxappeals have now been rejected by order dated 10.03.2022upholding the order of the Tribunal. The grievance of thepetitioner projected in these writ petitions is that the orderpassed by the Assessing Authority following the judgment ofthis Court in W.P.(C)No.25978 of 2020 was again withoutaffording an opportunity of cross examination to thepetitioner. 2.The learned counsel appearing for the petitionervehemently contends that merely because this Court had seta time limit to dispose of the matter while rendering thejudgment in W.P.(C)No.25978 of 2020, is no reason for theassessing authority to hold that an effective opportunity ofcross examination need not be extended to the petitioner. Itis submitted that the orders of assessment which are nowimpugned in these writ petitions would clearly show that the petitioner had co-operated with the assessment in everymanner possible and it is only on account of the failure of thewitness in question to appear before the assessing authoritythat the petitioner was forced to request for adjournment toexercise his right to cross examination. It is submitted thatcertain details sought for by the petitioner from the AssessingAuthority were also provided only the day prior to the datefixed for cross examination. It is submitted that these matterscumulatively show that an effective opportunity was notgiven to the petitioner and therefore, the assessment ordersin respect of the assessment years mentioned above must beset aside and the petitioner must be afforded a freshopportunity to cross examine the witnesses and produce suchmaterials that may be necessary before the assessing officer. 3.The learned Standing Counsel for the Departmentpoints out that the assessment orders impugned in these writpetitions have been issued as early as on 05.03.2021. It issubmitted that these writ petitions cannot be considered onaccount of the fact that the challenge to the assessmentorders are made belatedly and only in the month of June2022. It is submitted that the petitioner has an effective alternative remedy of appeal and there is no reason for thiscourt to examine the question as to whether the petitionerwas afforded a proper opportunity before the assessingofficer. It is submitted that the communications exchangedbetween the assessing officer and the petitioner will clearlyshow that the assessing officer had extended every possibleopportunity to the petitioner. 4.The learned counsel appearing for the petitioner inreply contends that the officer had waited till the last possiblemoment to initiate proceedings following the judgment of thisCourt in W.P.(C)No.25978 of 2020. It is pointed out thatthough the said judgment was delivered on 25.11.2020, theofficer issued the first notice following the judgment only inthe month of February 2021 and he proceeded to completethe assessment hurriedly stating that the time limit fixed bythis Court for completing the assessment expires on07.03.2021. 5.Having heard the learned counsel for thepetitioner and the learned Standing Counsel appearing forthe Department, I am of the view that there is merit in thecontention taken by the learned Standing Counsel for the Department that this court should not interfere with theassessment orders in question on account of the fact that thechallenge to the same is made belatedly and almost after oneyear and three months after those assessment orders arepassed. 6.Without expressing any opinion on the merits ofthe contentions raised by the learned counsel for thepetitioner, I deem it appropriate to decline relief in these writpetitions making it clear that the petitioner may file appealsagainst the assessment orders in question also raising thecontention that the assessing officer failed to give aneffective opportunity to the petitioner to cross examine thewitnesses as directed by this Court in the judgment in W.P.(C)No.25978 of 2020. With the above observation, these writ petitions willstand dismissed. DK Sd/-GOPINATH P.JUDGE APPENDIX OF WP(C) 19803/2022 PETITIONER EXHIBITS Exhibit P1COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2009-10.RESPONDENT FOR THE YEAR 2009-10. Exhibit P2COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI.COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. Exhibit P3COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI.INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI. Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.RESPONDENT. Exhibit P5COPY OF JUDGMENT IN WP(C) NO.25978/2020 OF THIS HON'BLE COURT.NO.25978/2020 OF THIS HON'BLE COURT.Exhibit P6COPY OF LETTER ISSUED BY THE 4TH RESPONDENT.RESPONDENT.Exhibit P7COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.PETITIONER BEFORE THE 4TH RESPONDENT.Exhibit P8COPY OF LETTER ISSUED BY THE 4TH RESPONDENT.RESPONDENT.Exhibit P9COPY OF LETTER FILED BY PETITIONER'S COUNSEL.COUNSEL.Exhibit P10COPY OF LETTER ISSUED BY 4TH RESPONDENT.RESPONDENT.Exhibit P11COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.PETITIONER BEFORE THE 4TH RESPONDENT.Exhibit P12COPY OF LETTER ISSUED BY THE 4TH RESPONDENT.RESPONDENT. APPENDIX OF WP(C) 19804/2022 PETITIONER EXHIBITS Exhibit P1COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE 2008-09. Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. Exhibit P3 COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI. Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.RESPONDENT. Exhibit P5 APPENDIX OF WP(C) 19804/2022 PETITIONER EXHIBITS Exhibit P1COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE 2008-09. Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. Exhibit P3 COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI. Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.RESPONDENT. Exhibit P5 COPY OF JUDGMENT IN WP (C) NO. 25978/2020 OF THIS HON'BLE COURT. 25978/2020 OF THIS HON'BLE COURT. Exhibit P6 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT.RESPONDENT. Exhibit P7 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P8 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT.RESPONDENT. Exhibit P9 COPY OF LETTER FILED BY PETITIONER'S COUNSEL. COUNSEL. Exhibit P10 COPY OF LETTER ISSUED BY 4TH RESPONDENT RESPONDENT Exhibit P11COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P12COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. 12 Exhibit P13COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. Exhibit P14COPY OF LETTER ISSUED BY THE 4TH RESPONDENT. Exhibit P15COPY OF ORDER ISSUED BY THE 4TH RESPONDENT . APPENDIX OF WP(C) 19910/2022 PETITIONER EXHIBITS Exhibit P1COPY OF ORDER ISSUED BY THE 1ST RESPONDENT RESPONDENT Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI Exhibit P3 COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHIINCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI Exhibit P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT RESPONDENT Exhibit P5 COPY OF JUDGMENT IN WP (C) NO. 25978/2020 OF THIS HON'BLE COURT Exhibit P6 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT Exhibit P7 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT Exhibit P8 COPY OF LETTER ISSUED BY THE 4TH RESPONDENT RESPONDENT Exhibit P9 COPY OF LETTER FILED BY PETITIONER'S COUNSEL COUNSEL Exhibit P10 COPY OF LETTER ISSUED BY 4TH RESPONDENT RESPONDENT Exhibit P11COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT PETITIONER BEFORE THE 4TH RESPONDENT Exhibit P12COPY OF LETTER ISSUED BY THE 4TH RESPONDENT