Wp(C)/18370/2019 Of A.m.abdul Razak v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941WP(C).No.18370 of 2019 PETITIONER: A.M.ABDUL RAZAK,AGED 58 YEARSSON OF MEERANNAN, V.P.V-448, HILL PRODUCE DEALER, K.K.ROAD, VANDIPERIYAR-685533, IDUKKI DISTRICT.BY ADVS.SRI.S.EASWARANSMT.SOUMYA JAMESSRI.M.A.AUGUSTINESRI.P.MURALEEDHARAN (IRIMPANAM)SRI.P.SREEKUMAR (THOTTAKKATTUKARA) RESPONDENT: THE INCOME TAX OFFICER,OFFICE OF THE INCOME TAX OFFICER, WARD-I, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM-686001. SC SRI JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Heard Sri.S.Easwaran, the learned counsel for the petitioner and Sri. Jose Joseph, the learned Standing Counsel for therespondents. 2. Petitioner challenges Ext.P3 order and Ext.P4 demand. The issue arises under Section 271B of the Income Tax Act, 1961.Sri.M.S.Easwaran, does not dispute the availability of statutoryremedy of appeal against the order in Ext.P3, but attempts toconvince this Court to exercise writ jurisdiction, by canvassingthat the omission namely the books together with Auditorsreport was already submitted and without reference to thatExt.P3 order is made. This is a jurisdictional fact which this Courtcan examine under its power of judicial review and set aside theorders challenged in the writ petition. 3. Sri.Jose Joseph, submits that this is a pure and simpleverifiable circumstance which the appellate authority canundertake and there is no extraordinary circumstances made out by the petitioner for invoking writ jurisdiction of this Court. Heinsists that the petitioner ought to be relegated to working outhis grievances against Exts.P3 and P4 in a statutory appeal andall the contentions/ objections available in this behalf could beleft open for consideration by the appellate authority. He praysfor dismissing the writ petition. I have perused the record and noted the submission. This Court is convinced with the objection raised by the counselappearing for respondents that Ext.P3 ought to be challenged bythis appeal. Ext.P4 since is issued and there is threat of takingsteps pursuant to Ext.P4 in the interregnum i.e, from today till thedate of an appeal is filed and orders are considered and passedon the stay petition. Therefore with a view to protecting therights of the petitioner and also enable the petitioner to fileappeal and raise all grounds effectively, the writ petition isdisposed of by this order:- (a) the petitioner is given liberty to file appeal within four weeksfrom today along with stay petition seeking stay of execution of Ext.P3 order. (b) the respondents are directed not to effect recovery pursuant to Exts.P3 and P4 order/notice for eight weeks from today or tillthe order is made and communicated to the petitioner. Sd/- S.V.BHATTI JUDGE Ac APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1AUDIT REPORT UNDER SECTION 44AB OF THE INCOME TAX ACT, 1961 DATED 15.12.2015. EXHIBIT P2INDIAN INCOME TAX RETURN ACKNOWLEDGEMENTDATED 15.3.2016 ISSUED BY THE RESPONDENT. EXHIBIT P3COPY OF ORDER DATED 7.6.2019 ISSUED BY THE RESPONDENT.EXHIBIT P4COPY OF DEMAND DATED 11.6.2019 ISSUED BYTHE RESPONDENT. RESPONDENT'S/S EXHIBITS: NIL //TRUE COPY//PA TO JUDGE