Wa/138/2024 Of Dinesh Dinakaran Pillai v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATHTHURSDAY, THE 1 DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945WA NO. 138 OF 2024 AGAINST THE JUDGMENT DATED 15.11.2023 IN WP(C) 23174/2023 OFHIGH COURT OF KERALA APPELLANT/PETITIONER: DINESH DINAKARAN PILLAI, AGED 52 YEARSS/O. P. DINAKARAN PILLAI, MEKKAPLATHARA, PAZHAVADISTREET, NEDUMANGAD, PIN - 695541BY ADVS.ASWIN GOPAKUMARANWIN GOPAKUMAR, SARANYA BABUADITYA VENUGOPALAN, NIKITHA SUSAN PAULSONMAHESH CHANDRANSHALLET K. SAM RESPONDENT/RESPONDENT: THE INCOME TAX OFFICERTHE OFFICE OF THE INCOME TAX OFFICER, WARD 2 (1), TRIVANDURM, AAYAKAR BHAVAN, PEROORKADA, KOWDIAR, THIRUVANANTHAPURAM, KERALA, PIN - 695003BY .ADV. P.G. JAYASHANKAR KEERTHIVAS GIRISC-P.G.JAYASHANKER.THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON01.02.2024, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: J U D G M E N T Dated this the 1[st] day of February, 2024 Dr. Kauser Edappagath, J. The appellant is the writ petitioner. He sold 50 cents of landbelonging to him in Vilappil Village in Thiruvananthapuram on27.2.2016 for a total sale consideration of ₹30,00,000/-. On 7.2.2023,the respondent issued Ext.P2 notice to the appellant under Section133(6) of the Income Tax Act calling for information on his income taxreturn for the assessment year 2016-2017. The appellant did not giveany reply. Thereafter, the respondent issued Ext.P3 show cause noticeto the appellant under Section 148A of the Income Tax Act, requiringhim to show cause as to why a notice under Section 148 of the IncomeTax Act should not be issued. The appellant gave Ext.P4 reply to thesaid notice, mainly contending that Ext.P3 show cause notice was notmaintainable as Section 149 of the Income Tax Act specifically providedthat unless entries in the books of account which have escapedassessment of more than ₹50,00,000/-, no notice under Section 148 ofthe Income Tax Act can be issued for an assessment after 3 years havebeen elapsed from the end of the assessment year. According to the -:3:- appellant, since the total sale consideration was only ₹30,00,000/-,invocation of Section 148 was not justified. Thereafter, the respondentpassed Ext.P5 order repelling the contentions raised by the appellant inExt.P4 reply and holding that the case is fit for issuance of notice underSection 148 of the Income Tax Act. The appellant challenged Ext.P5order before the learned Single Judge. 2.The learned Single Judge found that Ext.P5 order waspassed without hearing the appellant. Accordingly it was set aside andthe matter was remanded back to the respondent to pass fresh ordersin accordance with law after hearing the appellant. Aggrieved by thesaid judgment, the appellant is before us. 3.We have heard Sri. Aswin Gopakumar, the learned counselfor the appellant and Sri. P.G. Jayashankar, the learned StandingCounsel for the respondent. 4.The learned counsel for the appellant submitted that thesole reason for re-opening the assessment is based on the informationreceived from the INSIGHT Portal and not on an independent inquiryconducted by the respondent. The learned counsel further submittedthat though the transaction made by the appellant was only for a sumof ₹30,00,000/-, the respondent for the first time in Ext.P5 order statedthat there are two transactions in the said financial year, each of₹30,00,000/- and it is nothing but duplication. The question whether -:4:- there was a single transaction or two transactions in the relevantfinancial year or not is a disputed question of fact. While the appellantstates that there was only one transaction, the respondent maintainsthe stand that there are two transactions. The said question of factcannot be adjudicated in a writ petition. -:4:- there was a single transaction or two transactions in the relevantfinancial year or not is a disputed question of fact. While the appellantstates that there was only one transaction, the respondent maintainsthe stand that there are two transactions. The said question of factcannot be adjudicated in a writ petition. Hence, we find that the learned Single Judge was absolutelyjustified in remitting the matter to the respondent to pass fresh ordersafter hearing the appellant. The appellant can raise all his contentionsbefore the respondent. The writ appeal fails and accordingly, it isdismissed. Sd/- DR. A.K.JAYASANKARAN NAMBIARJUDGE sd/- kp DR. KAUSER EDAPPAGATHJUDGE