Wp(C)/29322/2019 Of M/S.moidus Medicare Private Ltd v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942 WP(C).No.29322 OF 2019(M) PETITIONER/S: M/S.MOIDUS MEDICARE PRIVATE LTD.,(NATIONAL HOSPITAL), MAVOOR ROAD, KOZHIKODE, REPRESENTED BY ITS MANAGING DIRECTOR DR.K.MOIDU. BY ADVS.SRI.SANTHOSH P.ABRAHAMSMT.S.K.DEVI RESPONDENT/S: R1-2 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON30.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 30th day of September 2020 This writ petition is filed by the petitioner a company incorporated under the Companies Act by challenging Exts.P5 dated20.9.2019 passed by the 2[nd] respondent – the Income Tax AppellateTribunal. The facts for disposal of the writ petition are as follows: 2.The petitioner is running a Hospital by name NationalHospital at Mavoor Road, Kozhikode. The assessment for the sixassessments year 2006-07 to 2011-12 were done under Section 153Ar/w Section 153 C of the Income Tax Act, 1961, produced as Exts.P1to P1 (f). Against the assessment order petitioner preferred Exts.P2 toP2 (e) appeals before the 2[nd] respondent. However, the same weredismissed. Against the dismissal order petitioner filed miscellaneousapplications before the 2[nd] respondent – Tribunal, for rectification ofalleged mistakes apparent in Ext.P3 order, as per Exts.P4 to P4 (e).The miscellaneous petitions were also dismissed through the commonorder dated 20.9.2019. Challenging Ext.P5, this writ petition is filed. 3.Learned Counsel appearing for the petitioner submittedthat there is no remedy of appeal as enshrined under the provisions ofSection 260 A of the Income Tax Act. It is also submitted that, there is no mention about training charges in any of the search papers such asPanchanama, search inventories, sworn statement etc. 4.A statement is filed on behalf of the respondents and it isstated therein that the assessee had not filed return of income andsince details of payment received by the assessee was seized from theMedical College where proceedings u/s 132 took place, notice u/s153C was issued. It is also stated that the reasons given by theTribunal in reply to the submissions of the learned authorisedrepresentative of the assessee are justifiable and in accordance withlaw, thus, urged this Court for dismissal of the writ petition. 2. I have heard learned Counsel for the parties and appraisedthe paper books. Section 260A reads thus: 260A. (1) An appeal shall lie to the High Court from every order passed inappeal by the Appellate Tribunal before the date of establishment of theNational Tax Tribunal, if the High Court is satisfied that the case involvesa substantial question of law. (2) The Principal Chief Commissioner or Chief Commissioner or thePrincipal Commissioner or Commissioner or an assessee aggrieved by anyorder passed by the Appellate Tribunal may file an appeal to the HighCourt and such appeal under this sub-section shall be— (a) filed within one hundred and twenty days from the date on which theorder appealed against is received by the assessee or the Principal ChiefCommissioner or Chief Commissioner or Principal Commissioner orCommissioner; (b) [***] (c) in the form of a memorandum of appeal precisely stating therein thesubstantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period ofone hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within thatperiod. (3) Where the High Court is satisfied that a substantial question of law isinvolved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and therespondents shall, at the hearing of the appeal, be allowed to argue that thecase does not involve such question : (b) [***] (c) in the form of a memorandum of appeal precisely stating therein thesubstantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period ofone hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within thatperiod. (3) Where the High Court is satisfied that a substantial question of law isinvolved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and therespondents shall, at the hearing of the appeal, be allowed to argue that thecase does not involve such question : Provided that nothing in this sub-section shall be deemed to take away orabridge the power of the court to hear, for reasons to be recorded, the appealon any other substantial question of law not formulated by it, if it is satisfiedthat the case involves such question. (5) The High Court shall decide the question of law so formulated anddeliver such judgment thereon containing the grounds on which suchdecision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which— (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of adecision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, the provisions of the Code ofCivil Procedure, 1908 (5 of 1908), relating to appeals to the High Courtshall, as far as may be, apply in the case of appeals under this section. 3.The plain and simple reading of Section 260A of the Income Tax Act reveals that appeal to the High Court can be filedwithin a period of 120 days. The Tribunal while examining theapplication for taking out additional charges rejected the same on thesole ground that no additional evidence or material was placed. Evenattempt was made to make out a case of an error apparent on recordby invoking the provisions of section 254(2). Be that as it may. ThisCourt by invoking the provisions under Article 226 of the Constitutionof India cannot assume the role of an appellate court in deciding thematter, particularly when the matter is amenable to appeal under the provisions of the Act referred (supra). The writ petition is bereft ofmerits and it is accordingly dismissed. Jm/ Sd/ AMIT RAWALJUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2006-2007.YEAR 2006-2007. EXHIBIT P1 A TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2007-2008.YEAR 2007-2008. EXHIBIT P1 B TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008-2009.YEAR 2008-2009. EXHIBIT P1 C TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2009-2010.YEAR 2009-2010. EXHIBIT P1 D TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2010-2011.YEAR 2010-2011. EXHIBIT P1 E TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2011-2012.YEAR 2011-2012. EXHIBIT P1 F TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2012-2013.YEAR 2012-2013. EXHIBIT P2 TRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2006-2007.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2006-2007. EXHIBIT P2 A TRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2007-2008.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2007-2008. EXHIBIT P2 BTRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2008-2009.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2008-2009. EXHIBIT P2 C TRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2009-2010.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2009-2010. EXHIBIT P2 DTRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2010-2011.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2010-2011. EXHIBIT P2 A TRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2007-2008.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2007-2008. EXHIBIT P2 BTRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2008-2009.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2008-2009. EXHIBIT P2 C TRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2009-2010.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2009-2010. EXHIBIT P2 DTRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2010-2011.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2010-2011. EXHIBIT P2 ETRUE COPY OF THE ADDITIONAL GROUNDS FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2011-2012.BY THE PETITIONER BEFORE THE 2ND RESPONDENTFOR THE YEAR 2011-2012. EXHIBIT P3TRUE COPY OF THE COMMON ORDER DATED 10.04.2019 OF THE 2ND RESPONDENT, DISMISSING THE APPEALS.DISMISSING THE APPEALS. EXHIBIT P4 TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR THE ASSESSMENT YEAR 2006-2007.FOR THE ASSESSMENT YEAR 2006-2007. EXHIBIT P4 ATRUE COPY OF THE MISCELLANEOUS APPLICATION FOR THE ASSESSMENT YEAR 2007-2008.FOR THE ASSESSMENT YEAR 2007-2008. EXHIBIT P4 BTRUE COPY OF THE MISCELLANEOUS APPLICATION FOR THE ASSESSMENT YEAR 2008-2009.FOR THE ASSESSMENT YEAR 2008-2009. EXHIBIT P4 CTRUE COPY OF THE MISCELLANEOUS APPLICATION FOR THE ASSESSMENT YEAR 2009-2010.FOR THE ASSESSMENT YEAR 2009-2010. EXHIBIT P4 D TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR THE ASSESSMENT YEAR 2010-2011.FOR THE ASSESSMENT YEAR 2010-2011. EXHIBIT P4 ETRUE COPY OF THE MISCELLANEOUS APPLICATION FOR THE ASSESSMENT YEAR 2011-2012.FOR THE ASSESSMENT YEAR 2011-2012. EXHIBIT P4 FTRUE COPY OF THE MISCELLANEOUS APPLICATION FOR THE ASSESSMENT YEAR 2012-2013.FOR THE ASSESSMENT YEAR 2012-2013. EXHIBIT P5TRUE COPY OF THE COMMON ORDER DATED 20.09.2019 OF THE 2ND RESPONDENT TRIBUNAL.20.09.2019 OF THE 2ND RESPONDENT TRIBUNAL.