Wa/114/2020 Of Maya Sreekumar v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR TUESDAY, THE 28TH DAY OF JANUARY 2020 /8TH MAGHA, 1941 WA.No.114 OF 2020 AGAINST THE JUDGMENT IN WP(C) 11199/2013(Y) OF HIGH COURT OFKERALA APPELLANTS/PETITIONERS 2 TO 4: 1MAYA SREEKUMAR, W/O. LATE K.R . SREEKUMAR, KANNAMPILLIL, VALIATHU, S.V. MARKET P.O. KARUNAGAPPALLY.S.V. MARKET P.O. KARUNAGAPPALLY. 2MEERA M.S, D/O. LATE K.R . SREEKUMAR, KANNAMPILLIL, VALIATHU, S.V. MARKET P.O. KARUNAGAPPALLY. 3GANGARAM, S/O. LATE K.R . SREEKUMAR, KANNAMPILLIL, VALIATHU, S.V. MARKET P.O. KARUNAGAPPALLY.S.V. MARKET P.O. KARUNAGAPPALLY. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA KUM.NARAYANI HARIKRISHNAN RESPONDENTS/RESPONDENTS: 1INCOME TAX OFFICER, WARD IV, INCOME TAX OFFICE, ALAPPUZHA P.O. ALAPPUZHA 688 001. 2THE TAX RECOVERY OFFICER,ROOM NO. 7, 1ST FLOOR, PUBLIC LIBRARY BUILDING, KOTTAYAM H.P.O. SASTRI ROAD, KOTTAYAM 686 001. ROOM NO. 7, 1ST FLOOR, PUBLIC LIBRARY BUILDING, OTHER PRESENT: SRI. JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON28.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM & T.V. ANILKUMAR, JJ. ----------------------------------------------------- W.A. No. 114 OF 2020 ------------------------------------------------------- Dated this the 28[th] day of January, 2020 J U D G M E N T Abdul Rehim, J. Legal heirs of deceased 1[st] writ petitioner, who were the writ petitioners 2 to 4 in W.P.(C) No.11199/2013, are theappellants herein, challenging judgment of the Single Judge,dated 19[th] December, 2019. Respondents are the respondentsin the writ petition. 2. Against Ext.P2 order of assessment finalised against the deceased 1[st] writ petitioner, with respect to the assessment year 1999 – 2000, he filed a revision petition before theCommissioner of Income Tax, Kottayam, under Section 264 ofthe Income Tax Act, 1961. By virtue of Ext.P3 order passed inthat revision petition, the assessment was set aside and the W.A. No.114/2020 matter was remitted back to the assessing authority for passingfresh assessment order, after giving copies of the statementrecorded from the loan creditors and after allowing crossexamination of the creditors, if so desired by the assessee. TheAssessing Officer was directed to admit fresh evidence, if anyproduced, by the assessees. The assessee appeared beforethe Assessing Officer in the consequential proceedings. But hesought time and thereafter failed to turn out. This, according tothe appellants, was due to his illness, because he had beensuffering from chronic Schizophrenia. However, it was the caseof the 1[st] petitioner that, the consequential order passed by theAssessing Officer under Ext.P5(a) was not served to him. Inthe year 2011, when recovery steps were initiated, theassessee requested for a copy of the order. It is accordingly thatExt.P5(a) was served on him, in December, 2011. But, stillthere was no steps taken to challenge Ext.P5(a), from the sideof the deceased 1[st] petitioner. Thereafter, when saleproclamation was published with respect to immovable properties belonging to the deceased, during March, 2013, theabove writ petition was filed. 3.One of the main contention raised in the writ petition properties belonging to the deceased, during March, 2013, theabove writ petition was filed. 3.One of the main contention raised in the writ petition was that, along with Ext.P5(a) order of assessment, no notice ofdemand as contemplated under Section 156 of the I.T. Act wasissued. But the said contention was controverted by theDepartment(Revenue) on producing Ext.R1(a), which wouldsubstantiate that a demand notice was served along withExt.P5(a) on the assessee in the year 2006 itself, which he hadreceived on 03.01.2007. Therefore the learned Single Judgehad refused to interfere with Ext.P5(a) order of assessment, byobserving that the challenge is made at a highly belated stage.It was categorically found that, various adjournments weregiven by the Assessing Officer after remand of the matterthrough Ext.P3 order, and the assessee had not cooperatedwith the proceedings; nor had he taken any steps to crossexamine the loan creditors, despite furnishing of the cash flowstatement and other materials to him. Hence the Single Judge W.A. No.114/2020 found that there exists no illegality or perversity vitiating theorder of assessment, justifying any interference at this highlybelated point of time. Consequentially the writ petition wasdismissed. The above appeal is filed challenging the saidjudgment. 4.Heard; counsel for the appellants as well asStanding Counsel for the Government of India(Taxes). 5.We take note of the fact that the original assessment was completed as early as in the year 2004. The assesseechallenged the same in revision petition and obtained Ext.P3order of remand, in the year 2006. Evidently, consequentialproceedings was initiated before the Assessing Officer in May,2006. Different opportunities were afforded to the assessee. Hehad once appeared before the Assessing Officer, on19.12.2006. But the assessee has not adduced any freshevidence nor made any request for cross examination of theloan creditors. In addition, he only sought time. Since thereexisted a direction for time bound disposal of the matter, the W.A. No.114/2020 Assessing Officer finalized the assessment under Ext.P5(a).Ext.R1(a) produced by the department would reveal thatExt.P5(a) order of assessment was served upon the assesseealong with a demand notice, in January, 2007. Thereafter, thematter was kept ignored by the 1[st] petitioner/assessee till 2011.Even though a fresh copy of Ext.P5(a) was served at therequest of the assessee in the year 2011 itself, the above writpetition was filed only in the year 2013, when the saleproclamation notice was received pursuant to the recoverysteps initiated. Therefore the learned Singe Judge wasperfectly justified in declining interference. 6.We take note of the fact that, neither theassessee(deceased 1[st] writ petitioner) nor the appellants herein,who were the legal heirs impleaded in the writ petition, hadtaken any attempt to challenge the consequential assessmentby availing the statutory remedy of appeal. Therefore there isevery justification on the part of this court in refusinginterference with the recovery proceedings initiated. This is W.A. No.114/2020 more so, because the petitioners have failed in their contentionthat there was lack of service of proper demand notice. Hencewe are of the opinion that the Writ Appeal deserves no meritand the same is liable to be dismissed. 7.However, learned counsel for the appellants hadpointed out that, the observations contained in the impugnedjudgment may stand in their way in availing the statutoryremedy of appeal, even by seeking condonation of delay, beforethe appellate authority. We are of the opinion that, dismissal ofthe writ petition could not be in a manner foreclosing theremedy if any available to the appellants in challenging therevised assessment by availing statutory remedy. However, learned counsel for the appellants had W.A. No.114/2020 more so, because the petitioners have failed in their contentionthat there was lack of service of proper demand notice. Hencewe are of the opinion that the Writ Appeal deserves no meritand the same is liable to be dismissed. 7.However, learned counsel for the appellants hadpointed out that, the observations contained in the impugnedjudgment may stand in their way in availing the statutoryremedy of appeal, even by seeking condonation of delay, beforethe appellate authority. We are of the opinion that, dismissal ofthe writ petition could not be in a manner foreclosing theremedy if any available to the appellants in challenging therevised assessment by availing statutory remedy. However, learned counsel for the appellants had 8.Therefore, while dismissing the above writ appeal,we make it clear that none of the observations contained in theimpugned judgment shall not stand in the way of the appellantsseeking remedy of appeal before the appellate authority byseeking condonation of delay occurred in filing such appeal. Ifany such appeal is admitted, the appellate authority shall deal W.A. No.114/2020 -:8:- with the matter independently, to the extent it is admitted underlaw. Sd/- C.K. ABDUL REHIM, JUDGE. ul/- Sd/- T.V. ANILKUMAR, JUDGE.