Wp(C)/14204/2012 Of Avara Haji v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 18TH DAY OF JUNE 2012/28ND JYAISHTA 1934 WP(C).No. 14204 of 2012 (A) --------------------------- PETITIONER(S):------------- AVARA HAJI,, AGED 65 YEARS KATTUKANDAN HOUSE,KULIKKILIYAD.P.O,KOTTAPPURAM PALAKKAD DISTRICT. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT(S): -------------- THE INCOME TAX OFFICER, WARD NO.2, PALAKKAD-678001. BY SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 14204/2012 APPENDIX PETITIONER(S) EXHIBITS EXT-P1 TRUE COPY OF THE WP(C) 7108/2005 EXT-P2 TRUE COPY OF APPEAL MEMORANDUM WITH DELAY PETITIONEXT-P3 TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 23.02.2010 EXT-P4 TRUE COPY OF THE WP(C)16414/2010 EXT-P5 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 12.07.2010 12.07.2010 EXT-P6 TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN INCOME TAX APPELLATE TRIBUNAL IN I.T.A.483/2009 APPELLATE TRIBUNAL IN I.T.A.483/2009 RESPONDENTS' EXHIBITS NIL // TRUE COPY // P.A. TO JUDGE P.R.RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c) No. 14204 OF 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of June , 2012 JUDGMENT The issue involved in this writ petition is, whether Ext.P6 orderpassed by the Income-Tax Appellate Tribunal in I.T.A.No.483/2009 on29/03/2012 declining to condone the delay of 1270 days is correct orsustainable ? 2.The petitioner seeks to set aside the said order and to directthe Tribunal to consider the matter on merits. 3.Heard the learned Standing Counsel appearing on behalf ofthe respondent as well. 4.Going by the materials on record, it is seen that thepetitioner had earlier approached this Court by filing W.P.(C)No.16414/2010, wherein the challenge was in respect of the correctnessand sustainability of Ext.P2 notice demanding a sum of RS. 3,51,794/-for the assessment year 1999-2000 and Rs.3,855/- in respect of theassessment year 2005-06. After considering the merits, this Court WPC.No.14204/2012 observed that, there was no case for the petitioner that the petitionerhad challenged the fixation of the liability after the disposal of thestatutory appeal on 21/12/2006 by resorting to any procedure known tolaw and this being the position, the challenge raised against Ext.P2demand notice was held as not liable to be entertained. It wasaccordingly, that the writ petition was dismissed on merits. 5.The pleadings and proceedings reveal that the petitionerapproached the Tribunal by filing a second appeal along with a petitionto condone the delay of 1270 days, after suffering the judgment by wayof Ext.P5. Obviously, the petitioner approached this Court withoutavailing the statutory remedy, seeking for interference on merits. Itwas after considering the merits involved, that the decision wasrendered, declining interference and dismissing the writ petition. Afterthe dismissal of the writ petition as above, it was never open for thepetitioner to have approached the Tribunal i.e. the statutory authorityfor availing any statutory remedy, he having already chosen to invokethe discretionary jurisdiction of this Court (instead of the statutoryremedy) under Article 226 of the Constitution. No right to invoke the WPC.No.14204/2012 statutory remedy was reserved in Ext.P5, while dismissing the writpetition. In the said circumstances, no proceeding filed before theTribunal was liable to be acted upon and the Tribunal has rightlydismissed the petition to condone the delay as per Ext.P6. Nointerference is warranted and the writ petition is dismissed accordingly. P.R.RAMACHANDRA MENONJUDGE sv.