Wp(C)/16955/2013 Of V.gopalan v. Chief Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942 WP(C).No.16955 OF 2013(T) PETITIONER: V.GOPALANAGED 66 YEARSS/O.V.PAIDAL NAIR,SUBU NIVAS, PANNIYANNUR PO, THALASSERY 670 679 BY ADVS.SRI.N.T.NANDAKUMAR (PARAVUR)SRI.ASHISH MOHAN RESPONDENTS: THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON23.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The writ petition has been filed praying toquash Exts.P1, P4 and P6 and to issue a writ ofmandamus directing the respondents not to levy taxfrom the petitioner since he is entitled to therelief under Section 89(1) of the Income Tax Act.The issue relates to whether the amounts received bythe petitioner under the Voluntary Retirement Schemecan be brought to tax under the Income Tax Act. Thepetitioner had filed return initially but he wasissued with an intimation under Section 143(1) on20.12.2001 denying the relief under Section 89(1).There was another intimation under Section 154 on31.12.2003 declining to revise the assessment. Inthe above circumstances, the petitioner approachedthe Commissioner of Income Tax under Section 264 ofthe Income Tax Act. By Ext.P1, the said relief wasdeclined. Thereafter, on 14.01.2010, by Ext.P4, theCommissioner of Income Tax found that even though the legal position is settled in favour of thepetitioner, he will not be able to give the reliefsince a rectification application filed subsequentto the decision of the jurisdictional High Courtcannot be maintained. By Ext.P6, the Income TaxDepartment raised a demand on the petitionerregarding the arrears of tax to be paid. 2.When the case is taken up today, learnedcounsel for the respondents reiterated thecontention that Ext.P4 order cannot be found faultsince the Officer has acted only in accordance withlaw when he rejected the rectification application,for the reason that it was filed after the decisionof the jurisdictional High Court in favour of theassessee. At the same time, it is conceded that theintimations under Sections 143 and 154 wereappealable under Section 246(A) of the Income TaxAct and appropriate remedy for the petitioner was tomove an appeal. The writ petition is hence disposed of permitting the petitioner to file an appeal againstthe intimation dated 20.12.2001 under Section 143(1)and intimation dated 31.12.2003 under Section 154within a period of three weeks from today. If suchan appeal is filed, the same shall be treated as anappeal filed within time and concerned authorityshall dispose of the same on merits. Sd/- T.R.RAVI JUDGE Pn 23/11 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE PHOTOCOPY OF THE REVISIONAL ORDER PASSED BY THE 2ND RESPONDENT EXHIBIT P2TRUE PHOTOCOPY OF THE APPLICATION FOR RECTIFICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P3TRUE PHOTOCOPY OF THE ORDER IN WPC NO.26055/2009 EXHIBIT P4TRUE PHOTOCOPY OF THE ORDER IN P2 PASSEDBY 2ND RESPONDENTBY 2ND RESPONDENT EXHIBIT P5TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENTSUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT EXHIBIT P6 TRUE PHOTOCOPY OF THE NOTICE OF DEMAND ISSUED BY THE 3RD RESPONDENTISSUED BY THE 3RD RESPONDENT