Wa/352/2017 Of Ancy John v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 28 DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 WA NO. 350 OF 2017 AGAINST THE ORDER/JUDGMENT IN WPC 35054/2016 OF HIGH COURT OF KERALAAPPELLANT/S: JOHN JOSEPHKALLUNKAL HOUSE, KENICHIRA P.O. PANAMARAM, WAYANAD BY ADVS.SRI.M.GOPIKRISHNAN NAMBIARSRI.K.JOHN MATHAISRI.JOSON MANAVALANSRI.KURYAN THOMASSRI.RAJA KANNAN RESPONDENT/S: 1INCOME TAX OFFICER,WARD NO.2, KALPETTA, WAYANAD- 673 122 2THE ADDITIONAL COMMISSIONER(INCOEM TAX) RANGE 2, KOZHIKODE- 673 001 OTHER PRESENT: ADV. PARVATHI FOR THE APPELLANT., SC CHRISTOPHER ABRAHAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2022, ALONG WITHWA.352/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 28 DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943 WA NO. 352 OF 2017 AGAINST THE ORDER/JUDGMENT IN WPC 35020/2016 OF HIGH COURT OF KERALA APPELLANT/S: ANCY JOHNW/O. JOHN JOSEPH, KALLUNKAL HOUSE, KENICHIRA P.O., PANAMARAM, WAYANAD BY ADVS.SRI.M.GOPIKRISHNAN NAMBIARSRI.K.JOHN MATHAISRI.JOSON MANAVALANSRI.KURYAN THOMASSRI.RAJA KANNAN RESPONDENT/S: 1INCOME TAX OFFICERWARD NO.2, KALPETTA, WAYANAD - 673 122. 2ADDITIONAL COMMISSIONER (INCOME TAX),RANGE 2, KOZHIKODE - 673 001. OTHER PRESENT ADV. PARVATHI FOR THE APPELLANT., SC CHRISTOPHER ABRAHAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2022,ALONG WITH WA.350/2017, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: WA Nos.350/2017, 352/2017 -3- JUDGMENT [WA Nos.350/2017, 352/2017] S.V.Bhatti,J. The writ petitioners are the appellants. The appeals arefiled being aggrieved by the common order dated 21.12.2016 inW.P.(C) Nos.35020 & 35054 of 2016. The appellants questioned the orders reopening the assessments and also the reasonsrecorded by the Assessing Officer in the communication dated31.07.2015 as illegal and unsustainable. The learned Single Judge through the common judgment impugned in the appealdismissed the writ petitions and the findings recorded on thegrounds of challenge read thus: “6. There is no dispute about the legal position involved in the matter. Before an assessment is reopened in terms of Sections147 and 148 of the Income Tax Act, necessarily, it is open forthe assessee to request for the reason to believe. In this case,when request was made by the assessee, the reason to believehad been given. Though in Ext.P5, at para 12, the followingalone has been stated; “12. It may be noted that the findings of survey, which is the basic reason for reopening your case was alreadydiscussed in detail with your husband and his staffmembers who is handling your entire businessactivities as submitted by you during the post surveyproceedings and consolidated day book details forFY2011-12, FY2012-13 and FY2013-14 based on thefindings of the survey was even submitted to thedepartment. Further proceedings under Section 143(3)for AY2012-13 which was pending in your husband ShriJohn Joseph's case was finished on the basis of the saiddetails. Thus it clear that the necessary copiesregarding the findings of the survey are alreadyavailable with your group.” “12. It may be noted that the findings of survey, which is the basic reason for reopening your case was alreadydiscussed in detail with your husband and his staffmembers who is handling your entire businessactivities as submitted by you during the post surveyproceedings and consolidated day book details forFY2011-12, FY2012-13 and FY2013-14 based on thefindings of the survey was even submitted to thedepartment. Further proceedings under Section 143(3)for AY2012-13 which was pending in your husband ShriJohn Joseph's case was finished on the basis of the saiddetails. Thus it clear that the necessary copiesregarding the findings of the survey are alreadyavailable with your group.” the enclosure which has been annexed along with thedocuments clearly narrates why the assessment had to bereopened. Learned counsel for the petitioners however has acase that the enclosure that had been given was for internalpurpose and was not intended to be a notice given to thepetitioners indicating the reason to believe. In so far as theenclosure is enclosed along with Ext.P5 series and Ext.P7series, necessarily, the petitioners are put to notice regardingthe reason to believe by which the assessment had beenreopened. Under such circumstances, I am of the view thatnecessary particulars had already been given to the petitionershowing the reasons to believe and there is no reason why thisCourt should sit in judgment over the same and take adifferent view in the matter.” 2.During the pendency of the writ petitions the Assessing Officer completed the assessment and our attentionis invited to the assessment order dated 31.03.2015. In otherwords, through the proceedings/notice assailed in the writ -5- petitions, the Assessing Officer made the final order.Therefore, we are pursuaded not to examine the reasons givenby the learned Single Judge or the grounds urged challengingExts.P5 and P7. By leaving open the options and contentions availableagainst the assessment order dated 31.03.2015 the writ appealsstand dismissed. No order as to costs. Sd/-S.V.BHATTIJUDGE Sd/-BASANT BALAJIJUDGE JS