Wa/168/2024 Of Sayed Muhammed M v. The Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 7 DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945WA NO. 168 OF 2024 AGAINST THE JUDGMENT dated 15.1.2024 in WP(C) 42235/2023 OFHIGH COURT OF KERALA APPELLANT/PETITIONER: SAYED MUHAMMED M,AGED 40 YEARSS/O MUHAMMED KASIM, TC 48/1016(7) NOOR MAHAL,OPP. EDAYAR BRIDGE, POONTHURA P.O, THIRUVALLAM, THIRUVANANTHAPURAM, PIN - 695026BY ADV C.A.JOJO RESPONDENTS/RESPONDENTS: 1THE COMMISSIONER OF INCOME TAX (APPEALS),NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI, PIN - 1100012THE INCOME TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI, PIN - 110001BY ADVS.CHRISTOPHER ABRAHAMSC-P.R.AJITHKUMAR. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON07.02.2024, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: J U D G M E N T Dated this the 7[th] day of February, 2024 Dr. Kauser Edappagath, J. The appellant is the writ petitioner. He preferred the writpetition challenging Ext.P6 assessment order passed underSection 147 r/w section 144 and 144B of the Income Tax Act (forshort, the IT Act) and Ext.P11 appellate order passed underSection 250 of the IT Act. 2.The appellant is a businessman and an income taxassessee. He did not file return of his income for the assessmentyear 2017-2018. The assessing authority noted severaltransactions of high value in the appellant's account, includingcash deposits of crores of rupees during the aforementionedperiod. Hence, the assessing authority issued a notice underSection 148 of the IT Act to the appellant on 26/3/2021. But W.A.No.168/2024 there was no response. On 30/10/2021, the assessing authorityissued a notice under Section 142(1) of the IT Act with a detailedquestionnaire. There was no response to the said notice also.Thereafter, the assessing authority issued Ext.P4 draftassessment order along with a show cause notice alleging that acash deposit of Rs.1,15,03,870/-is seen in the account of theappellant. The appellant offered an explanation that he wasproviding tour operator services, and for the purpose of bookingair tickets on behalf of his clients, he used his personal creditcard, which his customers reimbursed. Hence, the amount hespent was not of a personal nature but incurred for businesspurposes. After considering the explanation offered, theassessing authority finalised the assessment order, finding anunexplained cash deposit under Section 69A of the IT Act for anamount of Rs.1,15,03,870/- and profit from business andprofession as Rs.2,44,008/-. Ext.P6 is the assessment order. Ademand notice under Section 156 of the IT Act was issued to theappellant for an amount of Rs.1,91,95,312/-. Ext.P7 is the W.A.No.168/2024 -:4:- demand notice. The appellant challenged Ext.P6 before theappellate authority. However, the appeal was dismissed as perthe Ext.P11 order. Thereafter, the appellant challenged Exts.P6and P11 before the learned Single Judge. The learned SingleJudge dismissed the writ petition, relegating the appellant to thestatutory remedy of appeal before the Income Tax AppellateTribunal. It is challenging the said judgment, the appellant isbefore us. 3.We have heard Sri. Jojo C. A, the learned counsel forthe appellant and Sri. P.R. Ajithkumar, the learned StandingCounsel for the respondents. 4.The appellant has chosen to challenge Ext.P6assessment order before the First Appellate Authority at the firstinstance. The First Appellate Authority, on merits, dismissed theappeal. A further appeal is provided against the Ext.P11 orderbefore the Income Tax Appellate Tribunal. The appellant hasrushed to this court without exhausting the statutory appellateremedy. The appellant challenged Exts.P6 and P11 orders mainly W.A.No.168/2024 -:5:- on factual grounds, which is in dispute. The disputed question of 3.We have heard Sri. Jojo C. A, the learned counsel forthe appellant and Sri. P.R. Ajithkumar, the learned StandingCounsel for the respondents. 4.The appellant has chosen to challenge Ext.P6assessment order before the First Appellate Authority at the firstinstance. The First Appellate Authority, on merits, dismissed theappeal. A further appeal is provided against the Ext.P11 orderbefore the Income Tax Appellate Tribunal. The appellant hasrushed to this court without exhausting the statutory appellateremedy. The appellant challenged Exts.P6 and P11 orders mainly W.A.No.168/2024 -:5:- on factual grounds, which is in dispute. The disputed question of fact cannot be adjudicated in the writ petition. As rightly held bythe learned Single Judge, the remedy open to the appellant is toapproach the Tribunal. We find no merit in the appeal. Accordingly, it is dismissed. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE sd/- DR. KAUSER EDAPPAGATH JUDGE kp