By Advs.sri.harisankar v. Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934 WP(C).No. 30157 of 2012 (T) --------------------------- PETITIONER(S): ------------------------- M.V.JOY, MANICKATAN HOUSE, EDAVOOR, KOOVAPPADY P.O., ERNAKULAM DISTRICT - 683 544. BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): ---------------------------- 1. ASST.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KOZHIKODE 673 001` 2. ASST.COMMISSIONER OF INCOME TAX, CIRCLE 1, 2ND FLOOR, KAP COMPLEX, RAILWAY STATION ROAD, ALUVA - 683 101. R1 & R2 BY ADV.SRI.JOSE JOSEPH, SC,INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.30157/2012 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1COPY OF ASSESSMENT ORDER PASSED BY THE 1 RESPONDENTDATED 18/07/2001.DATED 18/07/2001. EXT.P2COPY OF APPELLATE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), KOCHI DATED 10/03/2003.INCOME TAX (APPEALS), KOCHI DATED 10/03/2003. EXT.P3COPY OF ASSESSMENT ORDER PASSED BY THE 1 REPSONDENTDATED 28/06/2005.DATED 28/06/2005. EXT.P4COPY OF APPELLATE ORDER PASSED BY THE CIOMMISSIONER OF INCOME TAX (APPEALS), KOCHI DATED 24/11/2005.INCOME TAX (APPEALS), KOCHI DATED 24/11/2005. EXT.P5COPY OF ORDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL KOCHI BENCH DATED 28/06/2011.TRIBUNAL KOCHI BENCH DATED 28/06/2011. EXT.P6COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT DATED 8/8/2012. EXT.P7COPY OF OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 01/10/2012.2ND RESPONDENT DATED 01/10/2012. EXT.P8COPY OF REPLY ISSUED BY THE 2ND RESPONDENT DATED 19/11/12. EXT.P9COPY OF JUDGMENT IN ITA NO. 982 OF 2009 OF THIS HON'BLE COURT DATED 29/03/2012.COURT DATED 29/03/2012. RESPONDENTS' EXHIBITS:N I L /TRUE COPY/ Kss P.S.TO JUDGE ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.30157 OF 2012(T) -------------------------------------------------- Dated this the 18[th] day of December, 2012 J U D G M E N T Heard the counsel for the petitioner and the StandingCounsel for the respondents. 2. A search in the premises of the petitioner's brotherunder Section 132 of the Income Tax Act was conducted on29.7.1999. Proceedings were initiated under Section 158 BC ofthe Act and finally Ext.P1 order of assessment was passed on18.7.2001. In an appeal filed against Ext.P1 order, Ext.P2 orderdated 10.3.2003 was passed cancelling Ext.P1 and holding thatthe steps should be taken under Section 158BD. ThereupoExt.P3 order dated 28.6.2005 was passed against thepetitioner's brother under Section 158BD. 3. Petitioner's brother filed appeal and by Ext.P4 order, the appellate authority cancelled Ext.P3 order taking the view thatthe proceedings should have been initiated against thepetitioner. Against that order the revenue filed an appeal before the Tribunal which was dismissed by Ext.P5 order dated28.6.2011. 4. Thereafter Ext.P6 notice dated 8.8.2012 was issued tothe petitioner under Section 158BD of the Act. Thereupon thepetitioner filed Ext.P7 objection contending that the proceedingsagainst him are time barred. That objection raised by thepetitioner was rejected by Ext.P8 stating that Section 158BDdid not provide for any time limit for initiating proceedings andtherefore the plea of limitation is without substance. It ischallenging Ext.P8 the writ petition is filed. appellate authority cancelled Ext.P3 order taking the view thatthe proceedings should have been initiated against thepetitioner. Against that order the revenue filed an appeal before the Tribunal which was dismissed by Ext.P5 order dated28.6.2011. 4. Thereafter Ext.P6 notice dated 8.8.2012 was issued tothe petitioner under Section 158BD of the Act. Thereupon thepetitioner filed Ext.P7 objection contending that the proceedingsagainst him are time barred. That objection raised by thepetitioner was rejected by Ext.P8 stating that Section 158BDdid not provide for any time limit for initiating proceedings andtherefore the plea of limitation is without substance. It ischallenging Ext.P8 the writ petition is filed. 5. Contention raised by the counsel for the petitioner isthat although there is no limitation for issuing notice as stated inExt.P8, assessment proceedings should be completed within areasonable time of search. It is stated that search in this casewas on 29.7.1999 and the proceedings against the petitioner areinitiated by Ext.P6 notice dated 8.8.2012. This according to thecounsel shows that there has been unexplained and inordinatedelay which renders the proceedings against the petitioner arbitrary as held by this court in Ext.P9 judgment. 6. Section 158 BE(2)(b), provides that the period oflimitation for completion of block assessment in the case ofother person referred to in Section 158BD shall be 2 years fromthe end of the month in which notice has been served on suchother person in respect of the search conducted under Section132 of the Act. Therefore, it is obvious from this provision thatthe limitation starts only from the service of notice and not fromany point of time prior thereto. Admittedly, notice in this casewas served on the petitioner only by Ext.P6 dated 8.8.2012 andif it is so counted, the proceedings are well within time. This viewhas been accepted by the Division Bench of this court in Ext.P9judgment also. 7. In so far as the case of the petitioner that theassessment proceedings has not been completed within areasonable time and therefore is arbitrary, it has to be statedthat proceedings against the petitioner's brother culminated onlyby Ext.P5 order of the Tribunal rendered on 28.6.2011. If that be so, as held in Ext.P9 judgment itself, proceedings could have been initiated against the other person, viz the petitioner, onlythereafter. If that be the case, on facts I am unable to agreewith the counsel that there has been any unexplained orinordinate delay in this case. Therefore Ext.P8 order has to be upheld and I do so. Writ petition fails a and is dismissed. vi/ (ANTONY DOMINIC) JUDGE