Wp(C)/1152/2020 Of Erasseril Peter Bennan v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941 WP(C).No.1152 OF 2020(T) PETITIONER: ERASSERIL PETER BENNANERASSERIL HOUSE, NO.17/1095B, MUNDAMVELI, KOCHI-682507. BY ADVS.SRI.A.KRISHNANSRI.R.UMASANKAR RESPONDENTS: SRI.CHRISTOPHER ABRAHAM , SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS, J. =========================== W.P(C) No.1152 of 2020 ===========================Dated this the 23[rd] day of January, 2020 JUDGMENT The prayers in this Writ Petition (Civil) are as follows: “1. Through issuing a writ of certiorai or any other appropriate writ,Order or direction, call for the records pertaining to Ext.P2Assessment Order and quash Ext.P2 Assessment Order passed by the1[st] respondent.Order or direction, call for the records pertaining to Ext.P2Assessment Order and quash Ext.P2 Assessment Order passed by the1[st] respondent. 2. Through issuing a writ of Mandamus or any other appropriate writ,Order or direction, command the 1[st] respondent to reconsider theissue afresh in the light of the Ext.P1 and Ext.P1(a) Replies submittedby the petitioner.Order or direction, command the 1[st] respondent to reconsider theissue afresh in the light of the Ext.P1 and Ext.P1(a) Replies submittedby the petitioner. 3. Such other appropriate writ, order of direction as this Hon'ble Courtmay deem fit and proper to grant as to the nature of the case.”may deem fit and proper to grant as to the nature of the case.” 2.Heard Sri.A.Krishnan, learned counsel appearing for the petitioner and Sri.Christopher Abraham, learned Standing Counselappearing for the Income Tax Department, Government of Indiaappearing for the respondents. 3.It appears that the 1[st] respondent has issued notice dated19.12.2017 directing the petitioner to offer explanation regarding thesource of the fixed deposits mentioned therein during the demonetization period. The petitioner thereupon has filed Ext.P-1reply dated 19.09.2019. Thereafter, the petitioner has filed yet an yetanother reply on 19.09.2019, before the 1[st] respondent. Immediatelythereafter the petitioner sought permission and has withdrawn thesaid explanation/reply given by him on 31.12.2019 and filedExt.P-1(a) reply dated 30.12.2019 before the 1[st] respondent in thematter. The complaint of the petitioner is that the 1[st] respondent hasnow passed Ext.P-2 assessment order dated 31.12.2019, by relying onthe said explanation dated 30.12.2019, which was actually withdrawnthe petitioner and it is was therefore, non-existing material. 4.After hearing both sides it is seen that the said factualcontention raised by the petitioner appears to be correct and tenable.Indeed it appears that the 1[st] respondent has proceeded to placereliance on the explanation said to have been given by the petitioneron 30.12.2019, which is in fact immediately withdrawn by him and inits place, he has filed Ext.P-1 reply dated 30.12.2019. Therefore, theimpugned decision making process, which led to Ext.P-2 assessmentorder may place reliance on in all existing materials, he has indeedunreasonable and illegal. 4.After hearing both sides it is seen that the said factualcontention raised by the petitioner appears to be correct and tenable.Indeed it appears that the 1[st] respondent has proceeded to placereliance on the explanation said to have been given by the petitioneron 30.12.2019, which is in fact immediately withdrawn by him and inits place, he has filed Ext.P-1 reply dated 30.12.2019. Therefore, theimpugned decision making process, which led to Ext.P-2 assessmentorder may place reliance on in all existing materials, he has indeedunreasonable and illegal. 5.Without getting into the merits of the controversy in anymanner, it is ordered that Ext.P-2 would require interdiction eventhough otherwise, it is amenable to appellate challenge as per theprovisions contained in the IT Act. Hence, notwithstanding theavailability of statutory remedy, this Court is of the view that this is afit case therein, the discretion of Article 226 of the Constitution ofIndia would be exercised. In that view of the matter, it is orderedthat the impugned Ext.P-2 order will stand set aside and theassessment in relation thereto, will stand remitted to the1[st] respondent for decision and consideration afresh. The1[st] respondent may afford a reasonable opportunity of being heard tothe petitioner and permit him to file any additional writtensubmissions in the matter and after taking into consideration allaspects of the matter to which the petitioner has been givenopportunity to respond, may take a considered decision thereon, inaccordance with law, without much delay. With these observations and directions, the above Writ Petition(Civil) stands finally disposed of. Sd/- vgd ALEXANDER THOMAS JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE REPLY DATED 19.9.2019 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P1(A) TRUE COPY OF THE REPLY DATED 30.12.2019FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF ASSESSMENT ORDER DATED 31.12.2019.