W.a v. Shelly Products And Another

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 28[th] day of February, 2012 J U D G M E N T Ramachandran Nair, J Heard counsel for the appellant and the seniorcounsel appearing for respondents. The acquisition in1974 of the plantation of assessee's late mother LucyKochuvareed, during her life time led to payment ofcompensation including huge amount of interest. Withouteven filing a return the late assessee remittedRs.26,58,000/- towards tax with interest on thecompensation amount on 31.8.89. Later Departmentissued 148 notice and made assessments for several yearsstarting from 1979 onwards spreading over the income forall those years. However, when the assessee filed appealsthe 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 ordercancelling assessments, assessee is claiming refund withinterest which was rejected by the learned Single Judgeagainst which this Writ Appeal is filed. The learned SingleJudge has relied on the decision of the Hon'ble SupremeCourt reported in 261 ITR 367(Commissioner of IncomeTax v. Shelly Products and another). During hearing counsel for the appellant submittedthat unlike the case decided by the Hon'ble Supreme Courtin this case late assessee has not even filed returns.However Senior Standing Counsel submitted that as perthe judgment of the Hon'ble Supreme Court the Departmentis not obliged to grant refund of tax already paid by theassessee. In this case we see that the assessee alreadyremitted Rs.26.58 lakhs without mentioning as to what isthe nature of income. If this amount was assessed for theprevious year 1989-1990 when tax was paid, then the order W.A. No. 718 OF 2010 would have been perfectly valid. On the other hand,Department made assessments by spreading over incomefor 10 years back which led to cancellation of assessmentas time barred. We do not find any justification for theappellant to claim refund of tax already paid by thedeceased assessee. Consequently the learned Single Judgerightly dismissed the claim, following the judgment of theHon'ble Supreme Court. Writ Appeal is therefore dismissedas devoid of any merit. Sd/-C.N. RAMACHANDRAN NAIR,JUDGE. ul/- Sd/- BABU MATHEW P. JOSEPH,JUDGE. [True copy] P.S. to Judge.