Wp(C)/18472/2009 Of Smt.jaseela v. Income Tax Officer,Kozhikode And 2 Ors

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936 WP(C).No. 18472 of 2009 (D) ---------------------------- PETITIONER(S):--------------- JASEELA, W/O.P.SAJID MAHMOOD"SHEHNAS BHAVAN", 5/1598 NEAR BSNL GMIS OFFICE, ASHOKAPURAM, KOZHIKODE. BY ADV. SRI.NIRMAL. S RESPONDENT(S): --------------- 1. INCOME TAX OFFICER, WARD-2(2) KOZHIKODE, INCOME TAX DEPARTMENT, KOZHIKODE. 2. COMMISSIONER OF INCOME TAX APPEALS, AAYAKAR BHAVAN NORTH BLOCK, IVTH FLOOR, MAANANCHIRA CALCIUT-1. 3. INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON19-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18472 of 2009 (D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF ORDER PASSED BY THE RESPONDENT NO.J DATED17.12.03 EXT.P2: TRUE COPY OF ORDER PASSED BY THE 2ND RESPONDENT DATED29.09.04 EXT.P3: TRUE COPY OF ORDER DATED 12.11.08 IN I.T.A NO.1232/COCH/2004 EXT.P4: TRUE COPY OF DEATH CERTIFICATE ISSUED BY THE CONSULATEGENERAL OF INDIA, JEDDAH OF SRI.N.K.MAHAMOOD DATED 26.1.06 EXT.P5: TRUE COPY OF PETITION DATED 5.3.09 EXT.P6: TRUE COPY OF ORDER DATED 15.5.09 EXT.P7: TRUE COPY OF NOTICE DATED 15.5.09 RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P A TO JUDGE A.K.JAYASANKARAN NAMBIAR, J. .............................................................W.P.(C).No.18472 of 2009.............................................................Dated this the 19[th] day of December, 2014 J U D G M E N T The petitioner is the daughter of late M.K.Sakeena, who wasan assessee on the files of the 1[st] respondent. The said M.K.Sakeena died on 07.09.2003, after she had filed a return of incomefor the assessment year 2001-2002. The assessment for the saidyear under the Income Tax Act was therefore completed on herhusband Sri.N.K.Mahamood, who was the legal heir of lateM.K.Sakeena. In the assessment order, which is produced asExt.P1, the assessee was found liable to pay additional amountstowards tax liability. Aggrieved by Ext.P1 assessment order,Sri.N.K.Mahamood preferred an appeal before the 2[nd] respondentappellate authority. The said appeal came to be dismissed byExt.P2 order of the 2[nd] respondent. Aggrieved by Ext.P2 order,Sri.N.K.Mahamood filed an appeal before the 3[rd] respondentAppellate Tribunal. Pending consideration of the appeal by theAppellate Tribunal, Sri.N.K.Mahamood also died, on 12.01.2006, asevidenced by Ext.P4 death certificate. The petitioner in the writpetition, therefore, preferred an application for impledment of the legal heirs of late Sri.N.K.Mahamood before the 3[rd] respondentAppellate Tribunal. It would appear that the said application, filedfor the impleadment of the legal heirs of late.Sri.N.K.Muhamood,was not considered by the 3[rd] respondent Tribunal on the erroneousfinding that the said late Sri.N.K.Mahamood had died even beforeExt.P2 order passed by the 2[nd] respondent. The 3[rd] respondentTribunal therefore, without passing orders permitting theimpleadment of the legal heirs of Sri.N.K.Mahamood, proceeded toreject the appeal by Ext.P3 order. Thereafter, by Ext.P6 orderunder section 271(1C) of the Income Tax Act, a penalty was alsoimposed on the petitioner pursuant to the assessment completed inrespect of late Smt.M.K.Sakeena for the assessment year 2001-2002. In the writ petition, Exts.P3 and P6 are impugned. 2. In the statement filed on behalf of the respondents it isadmitted by the respondents that Sri.N.K.Mahamood had expiredduring the pendency of the appeal before the Appellate Tribunal. Itis pointed out that, as regards Ext.P6 penalty order, the petitionerwas duly heard before passing of the said order and, therefore, thecontentions raised by the petitioner in respect of Ext.P3 orderwould not lie against Ext.P6 order. It is further pointed out thatExt.P6 order is appealable under Section 246 of the Income Tax Actand, therefore, the petitioner should be relegated to the alternate remedy in the Income Tax Act against Ext.P6 order. 3. I have heard Smt.Veena Hari, the learned counsel for thepetitioner and Sri.Jose Joseph, the learned Standing counsel for theIncome Tax Department. 4. On a consideration of the facts and circumstances of thecase as also the submissions made across the Bar, I find that inExt.P3 order, the 3[rd] respondent Tribunal erroneously assumed thatSri.N.K.Mahamood who had filed the appeal before it againstExt.P2 order of the 2[nd] respondent, had died even before the filingof the said appeal. On the basis of the said finding, the 3[rd]respondent Tribunal did not permit the petitioner to implead thelegal heirs of late N.K.Mahamood as appellants in the appealbefore the Tribunal, for the purposes of pursuing the said appealbefore the Tribunal. This was a patent mistake committed by theTribunal and I am of the view that, the 3[rd] respondent Tribunalought to have considered and passed orders permitting thepetitioner to implead herself as the legal heir of lateSri.N.K.Muhamood who had died on 12.01.2006 during thependency of the appeal before the Appellate Tribunal. The non-impleadment of the legal heir of late Sri.N.K.Mahamood effectivelymeant that the Tribunal passed Ext.P3 order in respect of a dead person and thereby rendered its order a nullity in law. Under thesaid circumstances, therefore, I quash Ext.P3 order of the 3[rd]respondent Tribunal and direct the 3[rd] respondent Tribunal toconsider the appeal preferred by Late Sri.N.K.Mahamood, againstExt.P2 order of the 2[nd] respondent, afresh after permitting thepetitioner to implead herself as the legal heir of LateN.K.Mahamood in the aforesaid appeal that was filed before the 3[rd]respondent Appellate Tribunal. The 3[rd] respondent shall thereafterproceed to pass orders in the appeal after hearing the petitionerwithin a period of six months from the date of receipt of a copy ofthis judgment. As regards the challenge in the writ petition againstExt.P6 order, I find that the petitioner was heard in the matterprior to the passing of the said order. The order being one thatwas passed under Section 271(1) (C) of the Income Tax Act, theremedy of the petitioner lies in filing an appeal against the saidorder before the Commissioner of Income Tax, Appeals. Thepetitioner has not demonstrated any valid reason for interferingwith the said order at this stage, in proceedings under Article 226of the Constitution of India. Accordingly, leaving it open to thepetitioner to challenge Ext.P6 order before the appellate authorityunder the Income Tax Act, I refrain from issuing any direction tothe respondents with regard to the said order. If the petitionerfiles an appeal against Ext.P6 order within a period of one month from the date of receipt of a copy of this judgment, the appellateAuthority under the Income Tax Act shall consider the said appealon merits and pass orders within a period of six months from thedate of receipt of the appeal, by which time he would also have thebenefit of considering the order of the 3[rd] respondent Tribunal inthe appeal against Ext.P2 order of the 2[nd] respondent. A.K.JAYASANKARAN NAMBIAR JUDGE mns