Wa/1059/2009 Of Mini Muthoottu Mutual Funds Ltd v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WA.No. 1059 of 2009() -------------------------------- AGAINST THE JUDGEMENT/ORDER IN OP.6635/1999 Dated 19/02/2009 .................... APPELLANT(S): PETITIONER ------------------------ MINI MUTHOOTTU MUTUAL FUNDS LTD., P.B.NO.8,MUTHOOTTU BUILDINGS, KOZHENCHERRY, PATHANAMTHITA DISTRICT, REP.BY MANAGING DIRECTOR ROY.M.MATHEW. BY ADV. MR.P.GOPINATH RESPONDENT(S): RESPONDENT ------------------------- THE COMMISSIONER OF INCOME TAX (CENTRAL- 1)108-UTHAMAR GANDHI SALAI,CEHNNAI-34 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- WA NO.1059 OF 2009--------------------------------------------------Dated 2[nd] June 2009 Judgment RAMAN, J. The appellant is an assessee under the Income Tax Act.Ext.P1 is the assessment order. The appeal was pending beforethe appellate tribunal against the said order. When Kar VivadSamadhan Scheme 1998 was introduced, he filed a declaration,claiming the benefit under the scheme as evidenced by Ext.P2copy of the application filed on 24.12.1998. The benefit heclaimed was for an amount of Rs.26,82,606/- being the interestdue from him as per Ext.P1 order of assessment. Considering hisapplication and granting him some benefit, Ext.P3 order waspassed on 05.02.1999. Under Ext.P3, the petitioner was foundentitled to 50% on Rs.12,29,969/- which figure was arrived at byadjustment of the refund of Rs.22 lakhs due to him in respect ofthe subsequent assessment years. The adjustment shown wasmade under Section 245 of the Income Tax Act by orders dated7.8.1998. Aggrieved by those orders, the petitioner preferred a WA 1059/09 revision as per Ext.P4 on 26.11.1998. It was at that time,when the revision was pending, that it filed an OP before thiscourt challenging both the adjustment of the refund due to himunder S.245 as also Ext.P3 oder. Needless to say that thepetitioner having invoked the revisional remedy simultaneouslyhe could not have proceeded to claim any relief in the writpetition as he is precluded from invoking two parallelproceedings. The petitioner did not withdraw the revision so asto claim any benefits in the writ petition against Ext.P5. So,however, the learned single Judge considered the order passedunder S.245 of the Income Tax Act and held that for want ofnotice as mandated by that section, the order would have beenbad, but did not grant him any relief on the ground that since theadjustment itself was made the subject matter of revision underS.264 of the Income Tax Act, which has been repelled by therevisional authority by Ext.R(b) order and he having notchallenged that order, could not have raised the contention thatthe adjustment is bad. As a matter of fact, this observation wasmade possibly because by the time the judgment was delivered,the order was passed in the revision. WA 1059/09 WA 1059/09 2. The learned counsel for the appellant would submit thefinding of the learned single Judge that the petitioner oughtto have filed any revision against the order passed under S.264of the Act as a ground/reason for refusal of the relief against theorder passed under S.245 was not correct. According to him, ifthis court refused to consider his contentions against the orderpassed under S.245, for the reason that the revision was pendingand therefore, he could not have canvassed the correctness ofthe order, impugned in this revision, then, that question shouldhave been left open. On the other hand, if an order has sincebeen passed by the time the writ petition was heard, then thefact that he has not challenged that order specifically by anyamendment made to the writ petition is of no consequence.According to him, the correctness or otherwise f the order passedunder S.245 as also the oder passed under S.264 ought to havebeen considered since there is no further remedy by way ofappeal/revision against the revisional order passed under S.264. 3. We heard the learned counsel for the appellant as well asthe learned Standing Counsel appearing for the Revenue. It istrue that the order passed under S.245 was under challenge WA 1059/09 before the revisional authority. Though the petitioner hadsought for a declaration that the adjustment made is bad, thevarious orders passed under S.245 were not produced or soughtto be quashed. That apart, when he has already invoked thestatutory remedy by way of filing revision against those orders,the question of considering the correctness of the orders passedunder S.245 was not open to be canvassed in the writ petition.True that S.264 order was passed during the pendency of thewrit petition. At least as on that date, he could have amended thewrit petition and incorporated the necessary reliefs against theorder passed under S.264 by producing the same. So long as it isnot done, the question of considering the correctness orotherwise of the order passed under S.245 and 264 did notactually arise for consideration. Therefore, we leave open theright of the appellant to take recourse to such remedies availableto him under law against the orders passed under S.245 asaffirmed in revision under S.264. 4. Now, coming to the challenge made to the order passedunder the Kar Vivad Samadhan Scheme, so long as thecontention regarding the validity of an order under S.264 is not WA 1059/09 the subject matter of challenge in this writ petition, the onlyquestion is to consider whether Ext.P3 in such circumstancescould be said to be vitiated for any reason. As could be seen, thewhole argument against Ext.P3 rested on the contention againstthe order under S.245 in the air. So long as there are noindependent grounds urged against the challenge made againstExt.P3, we find no reason to interfere with the order of thelearned single Judge. The Writ Appeal is devoid of any merit andit is accordingly dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta