Wa/2049/2019 Of P.v.thomas v. The Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941 WA.No.2049 OF 2019 AGAINST THE JUDGMENT IN WP(C) 39333/2018(N) OF HIGH COURT OFKERALA DATED 26.02.2019 APPELLANT: P.V.THOMAS, POOTHARAYIL HOUSE, AYMANAM.P.O., KOTTAYAM - 686 015. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM RESPONDENTS: 1THE COMMISSIONER OF INCOME TAX (APPEALS),OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS), PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTAYAM - 686 001.2THE INCOME TAX OFFICER,WARD-5, KOTTAYAM, PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTAYAM - 686 001. BY SRI.JOSE JOSEPH, SC, GOI, TAXES THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.11.2019,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM & ANU SIVARAMAN, JJ. ``````````````````````````` W.A. No. 2049 OF 2019 ````````````````````````````` JUDGMENT Dated this the 4[th] day of November, 2019C.K. Abdul Rehim, J. 1.Petitioner in W.P.(C) No. 39333/2018 is in appeal against judgment of the Single Judge dated 26[th] February, 2019dismissing the writ petition, by leaving open the remedy availableto approach the appellate tribunal against Ext. P2 orderimpugned in the writ Petition. The respondents herein are therespondents in the writ Petition. 2.While finalizing assessment against the appellant with respect to the year 2015 - '16, the assessing authority disallowedan amount of Rs.11,59,000/- and added back the said amount tothe total income, u/s 40A (3) of the Income Tax Act, 1961. Thiswas done on the basis of a concession made by the authorized representative of the appellant, who appeared before theassessing authority. The finding in Ext. P1 order of assessmentin this regard is as follows : “7............Therefore, at the time of scrutiny assessment, the assessee's authorized representative offered to addback this amount to the total income returned.” 3.The authorised representative, thereafter, caused a letter tothe assessing authority intimating that he has not made any suchconcession, and at the time of hearing of the matter he put hissignature on the hearing sheet only as a token of hisappearance; and that he had not written any word of such offerand acceptance. The authorized representative requested theassessing authority to delete the above quoted words from theassessment order, on the basis that he had not conceded thesame. Ext.P3 is the copy of the above said letter dated04.07.2017. It contains an endorsement purportedly made bythe assessing authority as follows : “Received the letter. Contents not accepted. Sd/-20.07.2017.” The appellant thereupon challenged the order of 4.The appellant thereupon challenged the order ofassessment in a statutory appeal before the first appellateauthority, the Commissioner of Income Tax [Appeals], Kottayam.The appeal was dismissed by the appellate authority. Contentionbefore the appellate authority was that, the authorizedrepresentative of the appellant had not agreed to the addition,but he only signed to mark his appearance. The appellateauthority, on verification of the records, noticed the endorsementin the 'order sheet' of the proceedings, which contained theendorsement as below; “6/6/17 Shri. Rajesh C.A. Appeared for hearing. He hasagreed for addition of Rs.11,59,000/- u/s 40A(3) of theAct.” 5.The appellate authority found that, the 'notings in the ordersheet' would clearly show that the authorized representative ofthe appellant had agreed for making the addition and therefore the appellant is not entitled to agitate the said issue in theappeal. On finding that there is no merit in the appeal, thesame was dismissed. “6/6/17 Shri. Rajesh C.A. Appeared for hearing. He hasagreed for addition of Rs.11,59,000/- u/s 40A(3) of theAct.” 5.The appellate authority found that, the 'notings in the ordersheet' would clearly show that the authorized representative ofthe appellant had agreed for making the addition and therefore the appellant is not entitled to agitate the said issue in theappeal. On finding that there is no merit in the appeal, thesame was dismissed. Against the order of the first appellate authority, the 6.Against the order of the first appellate authority, theappellant approached this court in a Writ Petition, which wasopposed by the Revenue by contending that, whether theaddition was conceded by the authorized representative or not isa pure question of fact, which cannot be decided in a writpetition. It was pointed out that, the appellant ought to havesought further appellate remedy provided under Section 253.The learned Single Judge found that, the appellant had travelledthe statutory path half way by exhausting one appellate remedy.But thereafter he felt shy of proceeding further. Then he turnedaround and approached this Court by resorting to remedy underArticle 226. Since the contention involves a disputed question offact, it was observed that, this court cannot interfere with thematter. The learned Single Judge observed that, whatever reliefthe appellant had sought for before the writ court, can as well begranted by the Income Tax Appellate Tribunal, before whom the appellant had got an efficacious remedy. Therefore the writpetition was dismissed without adverting to the merits, byleaving open liberty to the appellant to approach the Tribunal.Further the Tribunal was directed, if approached, to exclude theperiod which the petitioner had spent before this court, forenabling the appellant to exhaust the appellate remedy. Thelearned Judge had shown further indulgence by deferring thecoercive steps of recovery for a period of 30 days from the dateof the judgment. The appellant is assailing the said judgment. The first contention raised is that, the assessing authority 7.The first contention raised is that, the assessing authorityought to have treated Ext. P3 letter as a request for rectification,coming within the purview of Section 154 of the Income Tax Act.We need not dwell upon the said issue, because the endorsementcontained in Ext. P3 itself would indicate that the assessingauthority had rejected the contents thereon. But it is pertinentto note that, against the non acceptance of Ext. P3 or against itsrejection, the appellant has not taken any further steps. Insteadhe approached the appellate authority challenging theassessment itself. Before the first appellate authority also, no specific contention was seen raised with respect to nonconsideration of the request made as per Ext. P3. Therefore weare of the opinion that the question regarding non considerationof Ext. P3, as a rectification petition, cannot be agitatedsuccessfully. 8.Secondly, it is contended that the appellate authority oughtto have made a probe into correctness of the statement made bythe authorized representative, to the extent of conceding theadditions made. But as pointed out by learned counsel for therespondent, no effort was seen taken before the first appellateauthority to adduce evidence to prove that the concession wasnot actually made. On the contrary, based on the recordsavailable, the appellate authority had specifically found that theauthorized representative had made a clear endorsement in theorder sheet agreeing for such an addition. Neither the appellantnor the authorized representative has taken any effort before thefirst appellate authority to substantiate their contention that theauthorized representative had put his signature in the ordersheet only to mark his appearance and not to concede the addition made. Therefore, we are compelled to arrive at afinding that, the appellant had failed, before the first appellateauthority, to prove that the endorsement contained in theassessment records with respect to the concession made by theauthorized representative is not true and correct. 9.Learned counsel for the appellant submitted that thelearned single Judge ought to have dealt with the matter byexercising powers vested under Article 226, because availabilityof the alternate statutory remedy is not an absolute bar. It isargued that; this Court ought to have appreciated the fact thatas a constitutional court urgent redresssal need to have beenmade in the writ petition. We are unable to accept suchcontentions, because there exists no exceptional circumstancesfor the writ court to bypass the statutory remedy, especially onthe wake of the contention of the revenue that what has to bedecided is a disputed question of fact. 10.Based on the above discussions, we are not persuaded tointerfere with the judgment impugned, as it does not suffer from kmd any illegality, error or impropriety. However, we make it clearthat if the appellant chooses to avail the statutory remedy ofsecond appeal, the Tribunal shall deal with the matterindependently, untrammelled by any observations contained inthe impugned judgment or any observations containedhereinabove. Consequently, the above writ appeal is hereby dismissed. Sd/-C.K.ABDUL REHIMJUDGE Sd/-ANU SIVARAMANJUDGE //TRUE COPY//P.A. TO JUDGE