Wp(C)/10100/2020 Of Ashick Abraham v. Principal Chief Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942 WP(C).No.10100 OF 2020(J) PETITIONER/S: ASHICK ABRAHAM7C, ASSET KOTTARAM, MARADU P.O.ERNAKULAM-682 304. BY ADV. SRI.C.K.KARUNAKARAN RESPONDENT/S: OTHER PRESENT: SRI JOSE JOSEPH , SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON21.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 21st day of May 2020 Petitioner, an individual assessee of Income taxdepartment and holder of a Permanent Account Number(PAN) Ext.P1 was subjected to assessment before he shiftedhis residence to Ernakulam from Alappuzha, But his PAN cardof Ernakulam was issued on December 2019. Mr.C.K.Karunakaran learned counsel appearing on behalf of thepetitioner submits that petitioner vide Exts.P3 and P4addressed the request to the 3[rd] respondent Income TaxOfficer Ward 1, Alappuzha for transfer of the assessmentproceedings initiated under Section 148. However no actionhas been taken giving cause to approach this Court with aprayer to issue writ of mandamus for considering suchrequest. He further submits that the distance betweenErnakulam and Alappuzha is 60 Kilometeres and theconvenience of the assessee has to be seen as the IncomeTax Authorities at Ernakulam would have the jurisdiction to take into consideration all the aspects as would be applicableor otherwise. In support of the aforementioned contention,he relies upon the provisions of sub section (1) of Section 124of Income Tax Act. 2.Issue notice before admission. Sri. Joseph Joseaccepts notice on behalf of Income Tax. He opposes theprayer for transfer by relying upon the provisions of subsection (3) of Section 124 of the Income Tax Act. In order tolay emphasis, he refers to the provisions of Sub section (a) ofsub section 3, which specifies that no person shall beentitled to call in question the jurisdiction of an assessingofficer if return under sub section (1) of Section 139 is filed,after expiry of one month from the date on which was servedwith a notice under sub section (1) Section 142 or sub section(2) of Section 143 or after the completion of the assessmentwhichever is earlier. Reference was also laid to sub section 4which empowers the assessing officer to take a call on thejurisdiction in case assessee placed the aforementionedobjection,and is not satisfied with the correctness of the claim. He thus submits that the aforementioned prayer assought for is not acceptable. Another reason for rejection ofthe writ petition is non disclosure of the fact that for theassessment year 2012-13 petitioner filed a return underSection 139 and an assessment order was passed underSection 146 (b). An appeal was preferred by the petitionerbefore the Commissioner of Income Tax under Section 246 Awhere demand were sought from the assessing officerpertaining to certain agriculture income. On receipt of theaforementioned report, the assessing officer issued a re-assessment notice pertaining to assessment year 2013-14and 2014-15 under Section 148 of the Act. All theseaforementioned particulars have intentionally withheld asthere is a complete bar under sub section (3) and subsection (4) of Section of 124 and urges this Court fordismissal of this writ petition. 3.In rebuttal, learned Counsel for the petitioner drawsthe attention of this court the provisions of sub section 1 ofsection 148 of the Income Tax Act by submitting that the proceedings under Section 148 are pari meteria to theproceedings under Section 139 and submits that there wouldnot be any impediment for the 3[rd] respondent to take a callon the request, particularly Ext . P4. 4.I have heard the learned counsel for the parties. 3.In rebuttal, learned Counsel for the petitioner drawsthe attention of this court the provisions of sub section 1 ofsection 148 of the Income Tax Act by submitting that the proceedings under Section 148 are pari meteria to theproceedings under Section 139 and submits that there wouldnot be any impediment for the 3[rd] respondent to take a callon the request, particularly Ext . P4. 4.I have heard the learned counsel for the parties. 5.Foradjudicationoftheaforementionedcontroversy,it would be appropriate to extract the provisionsof Sub Sections 1, 2 and 3 of Section 124 and as well as subsection 1 of Section 148, the same read as under. 124. Jurisdiction of Assessing Officers “1)Where by virtue of any direction or order issuedunder sub-section (1) or sub-section (2) of section 120,the Assessing Officer has been vested with jurisdictionover any area, within the limits of such area, he shallhave jurisdiction - (a)in respect of any person carrying on a businessor profession, if the place at which he carries on hisbusiness or profession is situate within the area, or wherehis business or profession is carried on in more placesthan one, if the principal place of his business orprofession is situate within the area, and (b)in respect of any other person residing withinthe area. 2)Where a question arises under this section as towhether an Assessing Officer has jurisdiction to assessany person, the question shall be determined by the[Principal Director General or] Director General or the[Principal Chief Commissioner or] Chief Commissioner orthe [Principal Commissioner or] Commissioner; or wherethe question is one relating to areas within thejurisdiction of different [Principal Directors General or]Directors General or [Principal Chief Commissioners or]Chief Commissioners or [Principal Commissioners or]Commissioners, by the [Principal Directors General or]Directors General or [Principal Chief Commissioners or]Chief Commissioners or [Principal Commissioners or]Commissioners concerned or, if they are not inagreement, by the Board or by such [Principal DirectorGeneral or] Director General or [Principal ChiefCommissioner or] Chief Commissioner or [PrincipalCommissioner or] Commissioner as the Board may, bynotification in the Official Gazette, specify. (3)No person shall be entitled to call in questionthe jurisdiction of an Assessing Officer - (a)Where he has made a return [under sub-section(1) of section 115WD or] under sub-section (1) of section139, after the expiry of one month from the date onwhich he was served with a notice under sub-section (1)of section 142 or [sub-section (2) of section 115WE or]sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b)where he has made no such return, after theexpiry of the time allowed by the notice under [sub-section (2) of section 115WD or sub-section (1) of section142 or under sub-section (1) of section 115WH or undersection 148 for the making of the return or by the noticeunder the first proviso to section 115WF or under the firstproviso to section 144] to show cause why theassessment should not be completed to the best of thejudgment of the Assessing Officer, whichever is earlier; (c)where an action has been taken under section132 or section 132A, after the expiry of one month fromthe date on which he was served with a notice under sub-section (1) of section 153A or sub-section (2) of section153C or after the completion of the assessment,whichever is earlier.] [148.Issue of notice where income has escapedassessment (c)where an action has been taken under section132 or section 132A, after the expiry of one month fromthe date on which he was served with a notice under sub-section (1) of section 153A or sub-section (2) of section153C or after the completion of the assessment,whichever is earlier.] [148.Issue of notice where income has escapedassessment [(1)] Before making the assessment, reassessmentor recomputation under section 147, the AssessingOfficer shall serve on the assessee a notice requiring himto furnish within such period, [* * *] as may be specifiedin the notice, a return of his income or the income of anyother person in respect of which he is assessable underthis Act during the previous year corresponding to therelevant assessment year, in the prescribed form andverified in the prescribed manner and setting forth such other particulars as may be prescribed; and theprovisions of this Act shall, so far as may be, applyaccordingly as if such return were a return required to befurnished under section 139:] [Provided that in a case- (a)where a return has been furnished during theperiod commencing on the 1[st] day of October, 1991 andending on the 30[th] day of September, 2005 in response toa notice served under this section, and (b)subsequently a notice has been served undersub-section (2) of section 143 after the expiry of twelvemonths specified in the proviso to sub-section (2) ofsection 143, as it stood immediately before theamendment of said sub-section by the Finance Act, 2002(20 of 2002) but before the expiry of the time limit formaking the assessment, re-assessment or re-computationas specified in sub-section (2) of section 153, every suchnotice referred to in this clause shall be deemed to be avalid notice: Provided further that in a case- (a)where a return has been furnished during theperiod commencing on the 1[st] day of October, 1991 andending on the 30[th] day of September, 2005, in responseto a notice served under this section, and (b)subsequently a notice has been served underclause (ii) of sub-section (2) of section 143 after theexpiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiryof the time limit for making the assessment, re-assessment or re-computation as specified in sub-section(2) of section 153, every such notice referred to in thisclause shall be deemed to be a valid notice.] [Explanation. – For the removal of doubts, it ishereby declared that nothing contained in the firstproviso of the second proviso shall apply to any returnwhich has been furnished on or after the 1[st] day ofOctober, 2005 in response to a notice served under thissection.] 6.On perusal of the aforementioned provisions, no doubt an assessee is prevented to dispute the question ofjurisdiction of the assessing officer, after the expiry of onemonth from the date when he was served with a notice undersub section (1) of Section 142 or sub section (2) of Section143, and in case such objection is raised the assessing officershall assign reasons regarding the correctness or otherwiseof the claim for referring the matter for determination undersub section (2) before the assessment is made. The questionwhich has arisen in the present writ petition is whether theproceedings under Section 148 ie re assessment would betaken at par with the proceedings under Section 139. 6.On perusal of the aforementioned provisions, no doubt an assessee is prevented to dispute the question ofjurisdiction of the assessing officer, after the expiry of onemonth from the date when he was served with a notice undersub section (1) of Section 142 or sub section (2) of Section143, and in case such objection is raised the assessing officershall assign reasons regarding the correctness or otherwiseof the claim for referring the matter for determination undersub section (2) before the assessment is made. The questionwhich has arisen in the present writ petition is whether theproceedings under Section 148 ie re assessment would betaken at par with the proceedings under Section 139. 7. on perusal of the provisions of Section 148 extractedsupra, it is axiomatic that the proceedings initiated underSection 148 shall be proceedings at the stage of filing of thereturn under Section 139. There is no doubt that thepetitioner did not disclose about the issuance of thereassessment notice dated 30.12.2019, pertaining toassessment year 2013-14 and 2014-15. However, thisaforementioned contention of Mr.Navaneeth N.Nath wasattempted to be refuted by Sri.C.K.Karunakaran in view ofthe fact that Sub Section (4) of Section 124 enjoins upon theassessing authority to assign a reason by recording asatisfaction for reference of determination as and when anyquestion of jurisdiction is raised. 8.It is a question of fact that the petitioner thoughshifted his residence in the year 2015 from Alappuzha toErnakulam and issuance of Pan card Ext.P1 in the year 2019is a testimony of the same for the remaining assessmentyears of course in case of any dispute with income tax thejurisdiction would be vested with the Income Tax Authority, Ernakulam. 9.I am of the view that all these points which havebeen urged before this Court can be conveniently taken andaddressed by the authority, ie. the assessing officer undersub section (4) of Section 124 of the Income Tax Act 1961.For the sake of reputition, the assessing officer is required torecord the satisfaction as per the provisions of sub section(2) before the assessment is made. It is a matter of recordthat the request Ext.P4 is dated 04.01.2020, ie within fewdays of receipt of the reassessment notice dated30.12.02019 under Section 148 of the Income Tax Act. 10. Having considered the aforementioned provisions ofthe Act and the rival contentions, I am of the view that theequity can be addressed, by directing 3[rd] respondent to takea call on the request Ext.P6 under sub section (4) of Section124 or any other provisions of the Act regarding thejurisdiction of assessment or reassessment proceedings, bytaking into consideration observation, herein above and therelevant provisions of the Act. Let this exercise be under taken within a period of one month from the receipt of a copyof this judgment after affording opportunity of hearing to thepetitioner and by passing a speaking order. It is made clearthat the 3[rd] respondent would take into consideration whetherthe claim made by the petitioner would or would not fallunder sub section (2), when the original assessment 139 hasbeen made or otherwise. It is further made clear that theproceedings may continue but shall not be finalised until andunless the request as envisaged under Ext.P6 within timeframe afore-mentioned. Sd/- Nak AMIT RAWALJUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE PAN CARD NO AACPE 5894 N OF THE PETITIONER EXHIBIT P2 TRUE COPY OF THE AADHAAR CARD NO OF THE PETITIONER EXHIBIT P3TRUE COPY OF PETITIONERS LETTER DATED 30.12.2019 ADDRESSED TO THE ITO NON CORPORATE WARD (1) ERNAKULAM EXHIBIT P4TRUE COPY OF LETTER DATED 4.1.2020 ADDRESSED TO THE 3RD RESPONDENTEXHIBIT P5TRUE COPY OF THE LETTER DATED 25.2.2020 COPIED TO THE 1ST RESPONDENT EXHIBIT P6 TRUE COPY OF THE LETTER DATED 25.2.2020 ADDRESSED TO THE 2ND RESPONDENT