Wp(C)/13048/2020 Of M.m.shajahan v. The Principal Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942WP(C).No.13048 OF 2020(E) PETITIONER/S: M.M.SHAJAHANFLAT NO.12B, HEERA INFOCITY, KUZHIVILA POST, THIRUVANANTHAPURAM-695 005. BY ADVS.SMT.NISHA JOHNSRI.V.P.NARAYANANSMT.DIVYA RAVINDRANSRI.R.BHASKARA KRISHNAN RESPONDENT/S: 1THE PRINCIPAL COMMISSIONER OF INCOME TAXAAYAKAR BHAWAN, KOWDIAR, THIRUVANANTHAPURAM-695 003. 2THE INCOME TAX OFFICERWARD-1(3), 5TH FLOOR, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695 003. OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON01.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 1[st] day of July 2020 The petitioner has approached this Court seeking the following reliefs: "i.To call for the records leading to the issues ofExts.P2 and P6 orders passed by the 1st respondent byrejecting the Revision Petition without adverting to themerits of the case and the orders Ext.P7 imposingpenalty u/s 271(1)(c) and the order Ext.P8 issued u/s154(4) and quash the same by the issue of Writ ofCertiorari or any other appropriate Writ order ordirection. ii.To issue of a Writ of Mandamus or any otherappropriate Writ, order or direction, directing therespondents to refrain from enforcing the illegalAssessment Order Ext.P1 and the demand pursuantthereto and the order imposing penalty vide Ext.P7 andthe revised order Ext.P8 issued un/s 154(4), pendingdisposal of W.P.(C). iii. To stay all proceedings for recovery of thedemand pursuant to the Assessment Order Ext.P1,Penalty order Ext.P7 and the revised order un/s 154(4)as per Ext.P8, for the Assessment Year 2009-10,pending disposal of the Writ Petition (Civil)." 2.The facts leading to filing of the writ petition are that the petitioner was doing coir business and running aPetrol Pump in Thiruvananthapuram. A return of income forthe Assessment Year 2009-10 on 5.3.2011, declaring total WP(C).No.13048 OF 2020(E) 3 income at Rs.1,80,780/- was filed. The Income tax ofRs.3,790/- was also remitted as per the return. The 2ndrespondent issued a notice under Section 148 of the Act on6.6.2013 by observing that the assessee seem to have notfiled the return of income for the assessment year. The cashdeposited in the Bank accounts are reflected in the cash book,ledger and are also subjected to audit of accounts at theclose of the year. However, without affording an opportunityand without issuing preassessment notice, the 2ndrespondent completed the assessment ex-parte u/s 144estimating the income of Rs.2,11,12,903/- and raised ademand of Rs.1,21,54,240/- vide Ext.P1 dated 11.3.2015.The petitioner being unaware of the remedy of appeal, theChartered Accountant advised a Revision Petition, which wasacknowledged on 2.2.2016. 3.Learned counsel appearing on behalf of thepetitioner submits that the revision petition was posted forhearing on 17.3.2017. The order was passed by the 1strespondent under Section 264, it is observed that thepetitioner was given an opportunity to be heard on10.3.2017. But the petitioner could not appear due to WP(C).No.13048 OF 2020(E)4 reasons beyond control. Against the rejection order ofrevision petition the petitioner approached this Court videW.P.(C) No.23492 of 2017, which was disposed vide order17.7.2017 and the petitioner was directed to appear beforethe Officer on 22.8.2017, on which date, the date of hearingshall be communicated and the matter shall be concludedsubject to the condition of payment of cost of Rs.10,000/-. 3.Learned counsel appearing on behalf of thepetitioner submits that the revision petition was posted forhearing on 17.3.2017. The order was passed by the 1strespondent under Section 264, it is observed that thepetitioner was given an opportunity to be heard on10.3.2017. But the petitioner could not appear due to WP(C).No.13048 OF 2020(E)4 reasons beyond control. Against the rejection order ofrevision petition the petitioner approached this Court videW.P.(C) No.23492 of 2017, which was disposed vide order17.7.2017 and the petitioner was directed to appear beforethe Officer on 22.8.2017, on which date, the date of hearingshall be communicated and the matter shall be concludedsubject to the condition of payment of cost of Rs.10,000/-. 4.Pursuant to the above judgment, the petitionersubmitted a representation on 17.10.2017 with reference tothe judgment and also remitted Rs.10,000/- as directed bythis Hon'ble Court. The 1st respondent issued a notice dated17.11.2017 to appear before the 1st respondent on23.11.2017 for hearing as evidenced by Ext.P5. Theaforementioned revision petition was dismissed vide orderdated 24.11.2017, Ext.P6. Perusal of the order would alsodemonstrate that the 1st respondent did not even refer tothese grounds before attributing frivolous conduct to the partof the petitioner. In fact the order suffer from pulpable erroras one of the bank accounts in South Indian Bank bearing No.0273053000003369 did not belong to the petitioner.Therefore the addition of Rs.1,27,13,782/- is totally without WP(C).No.13048 OF 2020(E) 5 any application of mind. The addition of entire credit in thebank account has been noticed without considering thewithdrawal from the bank account. In fact assessee washospitalized for more than two months due to illness and wasdisabled to take remedial steps. Transactions in the bankaccounts pertaining to the two business is totally different.Petitioner is also saddled with the demand of income tax ofRs.1,48,65,180/- as evidenced from rectification order dated31.3.2018 issued under Section 154(4) of the Act andimposition of penalty under Section 271(1)(c) of the Act asevidenced from Exts.P7 and P8 and urging this Court forsetting aside the order. 5.Learned counsel for the respondent raises theobjection qua maintainability of petition to be belated , alsoqua availability of the remedy ought to have been availedwithin the prescribed period of limitation. 6.I have heard the learned counsel for the parties andappraised the paper book and of the view that there is noforce and merit in the submissions. The entire focus of thepleadings reflects challenge to the impugned order Ext.P6dated 24.11.2017 issued under Section 264 of the Act but no WP(C).No.13048 OF 2020(E) 6 explanation has come forth as to how and in what mannerdelay occurred in laying challenge by filing an appeal beforethe Commissioner of Appeals. There could have been a forcein the argument had the impugned order not disclosed thecompliance of principle of natural justice or apparentlyappeared to be not only illegal but without jurisdiction. It issettled law that in such circumstances, the doors of this Courtunder Article 226 of the Constitution of India by exercisingthe power of review are always open. However, in the instantcase, for the sake of repetiton just to circumvent theprocedure of appeal, which prima facie is time barred; writpetition in the year 2020 has been filed. This Court cannotassume a role of an appellate court and examine the veracityand legality of an order of assessment on merits. As an upshot of findings, I do not find any illegality andthe writ petition is devoid of merits and is accordinglydismissed. sab Sd/- AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: As an upshot of findings, I do not find any illegality andthe writ petition is devoid of merits and is accordinglydismissed. sab Sd/- AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 11.3.2015 PASSED BY THE 2ND RESPONDENT ALONG WITH THE DEMAND NOTICE.11.3.2015 PASSED BY THE 2ND RESPONDENT ALONG WITH THE DEMAND NOTICE. EXHIBIT P2TRUE COPY OF THE REVISION ORDER C.NO.413/J/RP-12/2015-16 DATED 30.3.2017 ISSUED U/S 264 BY THE IST RESPONDENT.C.NO.413/J/RP-12/2015-16 DATED 30.3.2017 ISSUED U/S 264 BY THE IST RESPONDENT. EXHIBIT P3TRUE COPY OF THE JUDGMENT DATED 17.7.2017IN WPC NO.23492 OF 2017 OF THIS HON'BLE COURT.IN WPC NO.23492 OF 2017 OF THIS HON'BLE COURT. EXHIBIT P4TRUE COPY OF THE REPRESENTATION DATED 17.10.2017 SUBMITTED BY THE PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM.17.10.2017 SUBMITTED BY THE PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. EXHIBIT P5TRUE COPY OF THE NOTICE C.NO.413/J/PR-12/2015-16 DATED 17.11.2017 ISSUED BY THE2ND RESPONDENT TO THE PETITIONER.12/2015-16 DATED 17.11.2017 ISSUED BY THE2ND RESPONDENT TO THE PETITIONER. EXHIBIT P6TRUE COPY OF THE ODER C.NO.413/JUDL/RP-12/264/2017-18 DATED 24.11.2017 ISSUED U/S 264 BY THE IST RESPONDENT.12/264/2017-18 DATED 24.11.2017 ISSUED U/S 264 BY THE IST RESPONDENT. EXHIBIT P7TRUE COPY OF THE PENALTY ORDER DATED 23.9.2015 ISSUED U/S 271(1)(C) BY THE 2NDRESPONDENT.23.9.2015 ISSUED U/S 271(1)(C) BY THE 2NDRESPONDENT. EXHIBIT P8TRUE COPY OF THE REVISED OFDER ISSUED, U/S 154(4) DATED 31.3.2018 BY THE 2ND RESPONDENT.U/S 154(4) DATED 31.3.2018 BY THE 2ND RESPONDENT.