Op/21712/1999 Of Simon Philip v. Agrl. Income Tax & Sales Tax Officer

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,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.P1TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE ISTRESPONDENT FOR 1995-96 DATED 22/11/95 TO THE PETITIONER.RESPONDENT FOR 1995-96 DATED 22/11/95 TO THE PETITIONER. EXT.P2TRUE COPY OF THE NOTICE ISSUED BY THE IST RESPONDENT TOTHE PETITIONER DATED 25/2/96 FOR 1996-97.THE PETITIONER DATED 25/2/96 FOR 1996-97. EXT.P3TRUE COPY OF THE NOTICE ISSUE3D BY THE IST RESPONDENT TOTHE PETITIONER FOR 1997-98 DATED 29/1/97.THE PETITIONER FOR 1997-98 DATED 29/1/97. EXT.P4TRUE COPY OF THE PETITIONER'S LETTER TO THE ISTRESPONDENT DATED 20/2/97.RESPONDENT DATED 20/2/97. EXT.P5 TRUE COPY OF THE ASSESSMENT ORDER FOR 1996-97 ISSUED BYTHE IST RESPONDENT TO THE PETITIONER DATED 30/6/99.THE IST RESPONDENT TO THE PETITIONER DATED 30/6/99. EXT.P6TRUE COPY OF THE ASSESSMENT ORDER FOR 1997-98 ISSUED BYTHE IST RESPONDENT TO THE PETITIONER DATED 30/6/99.THE IST RESPONDENT TO THE PETITIONER DATED 30/6/99. EXT.P7TRUE COPY OF THE APPLICATION SUBMITTED BY THEPETITIONER'S MOTHER ON 29/6/96.PETITIONER'S MOTHER ON 29/6/96.EXT.P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THEPETITIONER'S BROTHER ON 29/6/1996.PETITIONER'S BROTHER ON 29/6/1996. EXT.P9TRUE COPY OF THE STAY ORDER ISSUED BY THE HON'BLE HIGHCOURT IN O.P.NO.10318/96 DATED 28/6/1996.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 andcommon issue arises and hence they are disposed of by a commonjudgment. In O.P.No.21712/99 the relief sought for is to quash Exts.P5 andP6 and also for a direction to complete the assessment for the assessmentyears 1996-97 and 1997-98 at the compounding rate as per Section 13 of theAgricultural Income Tax Act, 1991. 2. According to the petitioner, he owns a rubber plantation besides hehas 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 year1995-96 he applied for compounding under Section 13 of the AgriculturalIncome Tax Act and the Assessing Officer completed the assessment as perExt.P1 allowing the application. Subsequently, the lst respondent proposedto withdraw the compounding granted under Ext.P1 on the ground that thepetitioner is not eligible for compounding in respect of an extent of 1.72acres of land, which even according to him, is admittedly owned by him O.P.Nos.21712/99 & 9983/2002 along with others and since no compounding application was made byother co-owners. That was challenged by filing O.P.No.10318/96.Subsequently, for the year in question assessments were completedrejecting his claim for compounding under Section 13 of the Act. In viewof the pendency of O.P.No.10318/96 he straight away approached thisCourt by filing the original petition seeking to quash the assessmentorders for the two years as referred to above. O.P.Nos.21712/99 & 9983/2002 along with others and since no compounding application was made byother co-owners. That was challenged by filing O.P.No.10318/96.Subsequently, for the year in question assessments were completedrejecting his claim for compounding under Section 13 of the Act. In viewof the pendency of O.P.No.10318/96 he straight away approached thisCourt by filing the original petition seeking to quash the assessmentorders for the two years as referred to above. 3. Similar is the case in O.P.No.9983/2002. The assessment orderin respect of which the assessment has completed is sought to be quashedin the said original petition. It is now brought to my notice thatO.P.No.10318/96 was already disposed of by this court by judgment dated31st August, 2005 leaving open the right of the petitioner to file hisobjection. There was also a direction that the matter will be heard by theauthorities concerned and dispose of the same in accordance with law. Assuch the main ground on which the original petition is filed before thisCourt circumventing the statutory remedies is not now available to thepetitioner, in view of the disposal of O.P.No.10318/96 in the manner asindicated above, without going into the merits of the contention raised.Since the challenge made in these writ petitions is against the assessmentorders made by the Assessing Officer concerned, the petitioner has got anefficacious or alternative remedy by filing an appeal. But since these writ O.P.Nos.21712/99 & 9983/2002 petitions were admitted and were pending before this Court, in view of thependency of the earlier O.P.No.10318/96, I think it is only proper that thepetitioner be given an opportunity to move before the Appellate Authoritychallenging the orders impugned in these two original petitions. True thatbecause of the pendency of these matters before this court the statutorytime for filing the appeal has already expired. But it has to be noticedthat the petitioner has been bona fide prosecuting the matter by filing awrit petition, which was entertained by this Court and granted an interimstay also. In the circumstances, the period during which these two writpetitions are pending will stand excluded from the period of limitation infiling the appeal. The petitioner is given an opportunity to file appealswithin 30 days from today and if such appeals are filed, the same shall bedisposed of on merits, as expeditiously as possible, at any rate within aperiod three months from the date of receipt of the appeals. The interimstay 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 beopen to the authority to proceed pursuant to the assessment ordersimpugned in these original petitions. Original Petitions are disposed of as above. P.R.RAMAN,Judge.