Wp(C)/28373/2011 Of Valley Estate v. The Agriculture Income Taxe Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 25TH DAY OF AUGUST 2014/3RD BHADRA, 1936 WP(C).No. 28373 of 2011 (V) ---------------------------- PETITIONER : --------------------- VALLEY ESTATES, THEKKETHATTIL, KEEZHUKUNNU, KOTTAYAM REP. BY MANAGING PARTNER SANTHAMMA ABRAHAM. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT(S) : ---------------------------- 1. THE AGRICULTURAL INCOME TAX OFFICER, SULTHAN BATHERY, WAYANAD DISTRICT. SULTHAN BATHERY, WAYANAD DISTRICT. 2. THE TAHASILDAR (REVENUE RECOVERY), AMBALAVAYAL, IRULAM, SULTHAN BATHERY AMBALAVAYAL, IRULAM, SULTHAN BATHERY R1 & R2 BY GOVT. PLEADER SRI. BOBBY JOHN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn WP(C).No. 28373 of 2011 (V) APPENDIX PETITIONERS' EXHIBITS : -------------------------------------- EXHIBIT-P1-TRUE COPY OF THE ORIGINAL ORDER OF ASSESSSMENTDATED 24/06/1991.DATED 24/06/1991. EXHIBIT-P2-TRUE COPY OF THE JUDGMENT IN OTC NO. 26/2005 DATED21/07/2005.21/07/2005. EXHIBIT-P3-TRUE COPY OF THE REVISED ORDER WHICH IS A COMMMON ORDERFOR THE ASSESSMENT YEARS 1987-88 TO 1988-90DATED 09/05/1995.FOR THE ASSESSMENT YEARS 1987-88 TO 1988-90DATED 09/05/1995. EXHIBIT-P4-TRUE COPY OF THE JUDGMENT IN O.P NO. 1166/1998 DATED22/11/2007.22/11/2007. EXHIBIT-P5-TRUE COPY OF THE REVENUE RECOVERY NOTICES ALONG WITHNOTICE BEFORE ATTACHMENT.NOTICE BEFORE ATTACHMENT. EXHIBIT-P6-TRUE COPY OF THE REVENUE RECOVERY NOTICES ALONG WITH NOTICE BEFORE ATTACHMENT.NOTICE BEFORE ATTACHMENT. EXHIBIT-P7-TRUE COPY OF THE LETTER DATED 20/10/2011. RESPONDENTS' EXHIBITS : NIL ----------------------------------------------------------- //TRUE COPY// P.S. TO JUDGE Mn -------------------------------------- W.P.(C).No.28373 of 2011-V ------------------------------------- Dated this the 25[th] day of August, 2014 JUDGMENT The petitioner is aggrieved by the revenue recoveryproceedings initiated, as indicated in Exhibits P5 and P6, for theagricultural income tax dues for the years 1986 and 1987; whichis indicated in the schedule to the demand notices. Thepetitioner's contention is that the petitioner was a registeredpartnership firm; but, however, the assessment was completed asan unregistered partnership firm. The petitioner took statutoryremedies and eventually, in the revision before this Court,Exhibit P2 judgment was passed, directing the Assessing Officerto redo the assessment as a 'registered firm'. 2. The learned counsel for the petitioner would pointout that when a firm is assessed as a registered firm, the liabilityto pay tax would be apportioned amongst the partners inaccordance with their individual shares. However, in assessmentas an unregistered firm, the liability would be on the firm, on theentire income so assessed. It is in such circumstance, the WP(C).No.28373 of 2011 - 2 - petitioner challenged Exhibit P1; which concluded in Exhibit P2judgment. It is the specific averment of the petitioner that nothinghas transpired after Exhibit P2 and no further assessment wasmade, for the assessment year 1986-87. If at all the assessmentorder has been passed, it can only be on the individual partnersand not as against the firm, as is indicated in Exhibits P5 and P6,is the short contention. WP(C).No.28373 of 2011 - 2 - petitioner challenged Exhibit P1; which concluded in Exhibit P2judgment. It is the specific averment of the petitioner that nothinghas transpired after Exhibit P2 and no further assessment wasmade, for the assessment year 1986-87. If at all the assessmentorder has been passed, it can only be on the individual partnersand not as against the firm, as is indicated in Exhibits P5 and P6,is the short contention. 3. It is to be noticed that, with respect to agriculturalincome tax, the income assessed is of the previous year of theassessment year. Hence, the assessment year 1986-87 would takein the income of 1985-86. The income of 1986-87 would beassessed in the assessment year 1987-88. It is not discernibleeither from Exhibit P5 or Exhibit P6 as to the specific assessmentyear, to which the revenue recovery authorities have proceeded forrecovery. If the petitioner's contention that Exhibit P2 has not beenacted upon is correct, definitely it cannot be acted upon at thispoint of time. But, however, it has to be seen, as to what are thedues with respect to the earlier years and whether the petitionerwas assessed as a registered firm or an unregistered firm. This,definitely, would require further clarification from the part of the taxation authority. Exhibits P5 and P6 could not be proceeded with,especially since there was an interim order of status-quo passedby this Court at the time of admission of this writ petition. Atpresent Exhibits P5 and P6 cannot be proceeded with, for, there isabsolutely no clarity as to the period for which the demand israised. The respondent too has not thought it fit to file a counteraffidavit. The 1[st] respondent, however, shall be reserved liberty toinitiate recovery, if any demand is due as per the assessmentpassed in any of the years within the limitation period. That shall bedone only after a written communication to the petitioner. Therevenue recovery proceedings initiated as per Exhibits P5 and P6,however, are set aside. Reserving such liberty to the 1[st] respondent, the writpetition is disposed of. Sd/- K.Vinod Chandran, Judge vku. ( true copy )