Wp(C)/17897/2009 Of Anto Nitto & Others v. The Chief Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 WP(C).No. 17897 of 2009(F) ---------------------------------------- PETITIONER(S): ----------------------- 1. ANTO NITTO, SON AND LEGAL HEIR OF LATE K.J. COLUMBUS, KALAPPURAKKAL HOUSE, EDACOCHIN, COCHIN-682 006. 2. ARUN COLUMBUS, S/O. ANTONITTO, KALAPPURAKKAL HOUSE, EDACOCHIN, COCHIN-682 006. 3. ANUPAMA JOHN, D/O. ANTONITTO, KALAPPURAKKAL HOUSE, EDACOCHIN, COCHIN-682 006. BY ADV. SRI.RAJU JOSEPH RESPONDENT(S): ------------------------- 1. THE CHIEF COMMISSIONER OF INCOME TAX, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-18. 2. THE COMMISSIONER OF INCOME TAX, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-18. 3. THE CENTRAL BOARD OF DIRECT TAXES, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI. 4. THE TAX RECOVERY OFFICER, RANGE I, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-18. R1 & R2 BY ADV. SRI.JOSE JOSEPH, SC FOR INCOME TAX. R4 BY GOVT. PLEADER MR.SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2010, THE COURT ON 22/10/2010 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE DATED 22/06/2009 PUBLISHED IN THE MALAYALAMANORAMA DAILY. EXT.P1(a): COPY OF THE LETTER DATED 22/06/2009 ISSUED BY THE 4THRESPONDENT. EXT.P1(b): COPY OF THE SALE PROCLAMATION DATED 06/01/2009. EXT.P2: COPY OF THE ORDER IN WRIT APPEAL 275/2009 DATED 05/02/2009. EXT.P3: COPY OF THE PETITION DATED 06/10/2008. EXT.P4: COPY OF THE LETTER OF THE 3RD RESPONDENT DATED 12/03/2009. EXT.P5: COPY OF THE PETITION DATED 14/03/2009. EXT.P6: COPY OF THE LETTER OF THE 4TH RESPONDENT DATED 27/03/2009. EXT.P7: COPY OF THE PETITION DATED 01/04/2009. EXT.P8: COPY OF THE LETTER OF THE ASSESSING OFFICER DATED 09/06/2009. EXT.P9: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED09/06/2009. EXT.P10: COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 17/06/2009.EXT.P11: COPY OF THE PETITION DATED 17/06/2009 TO THE 1ST RESPONDENT.EXT.P12: COPY OF THE PETITION DATED 22/06/2009 TO THE 3RD RESPONDENT. EXT.P13: COPY OF THE JUDGMENT IN O.P. NO. 19909/2002 DATED 01/02/2006. EXT.P14: COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 13/09/2002IN THE CASE OF M/S.OCEAN FISHERIES. EXT.P14(a): COPY OF THE ORDER OF THE SECOND RESPONDENT DATED13/09/2002 IN THE CASE OF LATE K.J. COLUMBUS. EXT.P15: COPY OF THE LETTER OF THE 4TH RESPONDENT DATED 25/10/2002. RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF THE INTERIM ORDER OF THIS HONOURABLE COURT IN WP(C)NO. 15965/2008 DATED 04/09/2008. EXT.R4(B): COPY OF THE PROCEEDINGS OF THE TRO DATED 27/03/2009. EXT.R4(C): COPY OF THE PROCEEDINGS OF THE CHIEF COMMISSIONER OFINCOME TAX DATED 17/06/2009. EXT.R4(D): COPY OF THE ORDER OF THE CHIEF COMMISSIONER OF INCOME TAXDATED 17/06/2009. EXT.R4(E): COPY OF THE REPORT PUBLISHED IN THE MALAYALA MANORAMADATED 28/06/2009. R4(E) (IN I.A.7705/2010: COPY OF THE JUDGMENT IN O.P. NO. 4511/1995 DATED06/10/1998. EXT.R4(F): COPY OF THE INTERIM ORDER IN O.P. NO. 19909/2002 DATED 29/07/2002. EXT.R4(G): COPY OF THE JUDGMENT IN O.P. NO. 19909/2002 DATED 01/02/2006. EXT.R4(H): COPY OF THE LETTER DATED 29/10/2008 OF THE COCHINCORPORATION. //TRUE COPY// P.S. TO JUDGE rs. P.R. RAMACHANDRA MENON J.~~~~~~~~~~~~~~~~~~~~~~~~~~~W.P (C) No. 17897 OF 2009~~~~~~~~~~~~~~~~~~~~~~~~~~~~Dated, this the 22[nd] day of October, 2010 JUDGMENT This Writ Petition was heard by this Court on 30.07.2010 andpursuant to the I.A. No. 14611 of 2010, the matter was taken up and finallyheard today; including on the relief sought for in the I.A.. R4(E) (IN I.A.7705/2010: COPY OF THE JUDGMENT IN O.P. NO. 4511/1995 DATED06/10/1998. EXT.R4(F): COPY OF THE INTERIM ORDER IN O.P. NO. 19909/2002 DATED 29/07/2002. EXT.R4(G): COPY OF THE JUDGMENT IN O.P. NO. 19909/2002 DATED 01/02/2006. EXT.R4(H): COPY OF THE LETTER DATED 29/10/2008 OF THE COCHINCORPORATION. //TRUE COPY// P.S. TO JUDGE rs. P.R. RAMACHANDRA MENON J.~~~~~~~~~~~~~~~~~~~~~~~~~~~W.P (C) No. 17897 OF 2009~~~~~~~~~~~~~~~~~~~~~~~~~~~~Dated, this the 22[nd] day of October, 2010 JUDGMENT This Writ Petition was heard by this Court on 30.07.2010 andpursuant to the I.A. No. 14611 of 2010, the matter was taken up and finallyheard today; including on the relief sought for in the I.A.. 2. The sequence of events as narrated in the Writ Petition showsthat the petitioners are aggrieved of the steps pursued by the respondentsfor realization of the income tax arrears of M/s Ocean Fisheries and lateK.J. Columbus for the assessment years 1974 -'75 to 1978 - '79, 1980 - '81and 1982 - '83 and also in respect of interest under Section 220 (2) of thesaid Act. The first petitioner was a partner of firm M/s Ocean Fisheries andhis deceased father K.J. Columbus was the managing partner of the firm.There was also another partner by name Joseph Joppan. In the course ofthe steps taken by the department for realization of the amount stated asdue, the petitioners were served with a notice dated 06.01.2009, when theyapproached this Court by filing W.P.(C) No. 3319 of 2009, challenging thesame. After considering the merits involved, the said Writ Petition wasdismissed on 30.02.2009, however holding that the said judgment would not stand in the way of the authorities concerned, to take a decision on therepresentation dated 06.10.2008 preferred by the petitioner under Section119 of the I.T. Act ( Ext. P5 therein, which is marked as Ext. P3 in thepresent Writ Petition). Against the said verdict, Writ Appeal No. 275 of2009 was preferred by the petitioners, wherein an interim order waspassed as borne by Ext. P2, directing the petitioners to satisfy a portion ofthe liability as specified therein to have the representation considered. Thesaid Writ Appeal was finally disposed of as per judgment dated30.03.2009, directing the Commissioner, Income Tax, Kochi to considerand dispose of the petition for reconciliation dated 14.09.2009 preferred bythe petitioners/appellants within two months as specified. 3. The petitioners were being repeatedly required by the concernedauthorities to satisfy the amounts, as ordered by this Court earlier. Thecorrectness and sustainability of the figures mentioned were sought to bechallenged by filing various representations and several communicationsfollowed in between. The main grievance projected by the petitioners wasthat, the petitioners were earlier given the benefit of 'waiver' of interest toan extent of 60 % as ordered by the 3[rd] respondent as early as in the year2002, which was subsequently sought to be denied, when the proceedingswere finalized thereafter. In was in the said circumstances that thepetitioners preferred yet another petition before the concerned authorities, 3. The petitioners were being repeatedly required by the concernedauthorities to satisfy the amounts, as ordered by this Court earlier. Thecorrectness and sustainability of the figures mentioned were sought to bechallenged by filing various representations and several communicationsfollowed in between. The main grievance projected by the petitioners wasthat, the petitioners were earlier given the benefit of 'waiver' of interest toan extent of 60 % as ordered by the 3[rd] respondent as early as in the year2002, which was subsequently sought to be denied, when the proceedingswere finalized thereafter. In was in the said circumstances that thepetitioners preferred yet another petition before the concerned authorities, which culminated in denying the benefit of waiver by Ext. P9 dated09.06.2009. The petitioners pursued the matter further and the positionwas let known to them by the first respondent as per Ext. P10communication dated 17.06.2009. It is contended that, some othergrievances were also projected from the part of the petitioners on the dateof hearing and that Ext. P10 order was passed on 17.06.2009, withoutproperly appreciating the facts projected in the Ext. P11 representation. Itis also stated that, since the matter has not been effectively dealt with bythe first respondent while passing Ext. P10, the grievance of the petitionershas been projected again by filing Ext. P12, which is stated as pendingbefore the 3[rd] respondent. It is in the meanwhile, that further proceedingswere taken, notifying the sale of the property as per Ext. P1, which hencewas sought to be intercepted by filing the above Writ Petition. 4. When the matter was came up for consideration before this Courton 26.06.2009, the sale was permitted to be proceeded with, howevermaking it clear that 'confirmation of sale' shall be subject to further ordersto be obtained from this Court. It is brought to the notice of this Court that,since there were no bidders, the department itself bid the property for a Rs.95.71 lakhs. The respondents have filed a statement asserting the factsand figures with reference to the sequence of events, contending that theattempt being made from the part of the petitioners is only to protract the proceedings and there is absolutely no merit or bonafides in the WritPetition. 5. The petitioners have filed reply affidavit, followed by a rejointerfiled by the 4[th] respondent, producing copies of the relevant documents. 6. The learned standing counsel appearing for the respondentssubmits, with reference to the prayers contained (seeking for a direction todispose of Exts. P11 and P2) that Ext. P11 representation has alreadybeen considered ,passing Ext. R4 (d) order dated 26.06.2009 and that onlyExt. P12 is pending consideration before the 3[rd] respondent. 7. Going by the contents of the reply affidavit filed by the petitioners,several new averments have been raised therein, particularly as to the'limitation' and such other aspects; which do not find a place in the WritPetition. As such, this Court does not propose to go into the merits of thesaid contentions in the reply affidavit, when the pleadings and prayers inthe Writ Petition stand unamended, but for examining the merits of the WritPetition as it stands. 8. With regard to the contents of the I.A. now filed by the petitioners(I.A. No. 14841 of 2010), Mr. Raju Joseph, the learned senior counselappearing for the petitioners submits that the petitioners are ready andwilling to satisfy the entire liability for the time being, subject to the finaloutcome of the relevant proceedings and seek for a direction to reconvey the property to the petitioners. 8. With regard to the contents of the I.A. now filed by the petitioners(I.A. No. 14841 of 2010), Mr. Raju Joseph, the learned senior counselappearing for the petitioners submits that the petitioners are ready andwilling to satisfy the entire liability for the time being, subject to the finaloutcome of the relevant proceedings and seek for a direction to reconvey the property to the petitioners. 9. The respondents have filed a 'statement' dated 21.10.10 in thesaid I.A., stating that the property happened to be bid in favour of thedepartment on 30.06.09 for Rs. 95.70 lakhs, subject to the interim orderdated 26.06.2009 passed by this Court with regard to the sale. Taking noteof the fact that the sale was permitted to be proceeded, subject to furtherorders with regard to the confirmation of sale, as made clear in the interimorder dated 26.06.2010, the petitioners have come forward stating that theyare ready to discharge the entire liability as on date, subject to finaloutcome. On considering the grievance projected from the part of thepetitioners, this Court finds that the sale effected on 30.06.2009 could beset aside on clearing the entire liability to the department as on date andsatisfaction of the liability as above could be subject to the final orders tobe passed by the third respondent in Ext. P12, which is stated as pendingbefore the said respondent. 10. In the above facts and circumstances, the 4[th] respondent isdirected to intimate the petitioners as to the actual liability due from thepetitioners as on date, within 'one week' from today, on which event, it willbe open for the petitioners to satisfy the said liability, subject to the ordersto be passed by the 3[rd] respondent in Ext. P12. On satisfying the liability asabove, the property shall released and reconveyed to the petitioners forthwith at their cost and it will be open for the petitioners to deal with theproperties free from any encumbrances to the Department. 11. The third respondent is directed to consider Ext. P12 and passfinal orders thereon, in accordance with law, after giving an opportunity ofhearing to the petitioners, as expeditiously as possible, at any rate withinthree months from the date of receipt of a copy of this judgment. Thepetitioners shall produce a copy of this judgment along with a copy of Ext.P12 before the third respondent for further steps in this regard. I.A. No. 14611 of 2010 In view of the finalization of the Writ Petition as above, no separateorders are necessary in the I.A. Hence it is closed. kmd P. R. RAMACHANDRA MENON, JUDGE