Wp(C)/19494/2022 Of Olangattil Ibrahim Vinish Faisal, Thrissur v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 21 DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 WP(C) NO. 19494 OF 2022 PETITIONER/S: OLANGATTIL IBRAHIM VINISH FAISAL, AGED 34 YEARSOLANGATTIL HOUSE, ANUGRAHA, POST OFFICE PUVATHOR, CHAVAKKAD, THRISSUR-680508, KERALA. BY ADVS.DIVYA RAVINDRANLINCY GLANCY RESPONDENT/S: 1THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE, INTERNATIONAL TAXATION, CENTRAL REVENUE BUILDING,I.S PRESS ROAD, KOCHI-682018.2THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. OTHER PRESENT: SRI. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Petitioner has approached this court challenging Ext.P12 order ofassessment dated 28.05.2022 issued under Section 147 read with 144C of theIncome Tax Act. 2. The learned counsel appearing for the petitioner submits that though thepetitioner has an effective alternative remedy by way of appeal, the petitioner haschosen to approach this court through a writ petition under Article 226 of theConstitution of India since Ext.P12 assessment order is issued withoutjurisdiction. It is pointed out that Ext.P12 order relates to assessment year2014-15. It is pointed out that the procedure contemplated by Section 144C of theIncome Tax Act was not applicable to the petitioner for the assessment year2014-15 as the petitioner was not an “eligible assessee” as far as the assessmentyear 2014-15 is concerned. It is submitted that the entire procedure followed bythe Assessing Officer is, therefore, non est in law and without jurisdiction. It issubmitted that, in such cases, it is open to the petitioner to approach this courtunder Article 226 of the Constitution of India, notwithstanding the availability ofan effective alternative remedy. 3.The learned Standing Counsel appearing for the respondentdepartment refers to the provisions of Section 144C and points out that theprovisions of Section 144C apply not with reference to the assessment year butwith reference to any order passed or proposed to be passed in respect of an The learned Standing Counsel appearing for the respondent eligible assessee on or after 01.10.2009. It is submitted that even if the petitionerbecame an eligible assessee after the assessment year 2014-15, the procedureunder Section 144C was correctly followed by the Assessing Officer in respect ofthe petitioner. It is submitted that the petitioner had an option of filing objectionsbefore the Dispute Resolution Panel following receipt of a draft assessment order.It is pointed out that, despite receiving such an opportunity, the petitioner did notfile any objection before the Dispute Resolution Panel and instead filed Ext.P11objection before the Assessing Officer. It is also pointed out that on facts the orderof the Assessing Officer cannot be faulted in law as the Assessing Officer hascorrectly found that the petitioner was a resident in India having regard to theprovisions of Section 6(6) of the Income Tax Act. 4.Having heard the learned counsel for the petitioner and the learnedStanding Counsel for the department, I am of the view that the petitioner has notmade out a case for interference at this stage in exercise of jurisdiction underArticle 226 of the Constitution of India. The petitioner has an effective alternativeremedy by way of appeal before the Appellate Authority. It is clear that the timelimit for filing a statutory appeal has also not expired. Therefore, this writ petition will stand disposed of directing that if the 4.Having heard the learned counsel for the petitioner and the learnedStanding Counsel for the department, I am of the view that the petitioner has notmade out a case for interference at this stage in exercise of jurisdiction underArticle 226 of the Constitution of India. The petitioner has an effective alternativeremedy by way of appeal before the Appellate Authority. It is clear that the timelimit for filing a statutory appeal has also not expired. Therefore, this writ petition will stand disposed of directing that if the petitioner files a statutory appeal against Ext.P12 along with a stay petition beforethe Appellate Authority within the period of limitation, any demand pursuant toExt.P12 order shall not be enforced against the petitioner till a decision is taken onthe stay petition to be filed by the petitioner. I make it clear that I have not expressed any opinion on merits on the contentions raised by either side and it isfor the Appellate Authority to decide the matter on merits untrammelled by anyobservation contained in this judgment. The writ petition is disposed of as above. Sd/- okb/21.6.22 GOPINATH P.JUDGE //True copy// PS to Judge