Wp(C)/29525/2013 Of Shri. P.o.mathew v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935 WP(C).No. 29525 of 2013 () -------------------------------------- PETITIONER(S): -------------------------- SHRI. P.O.MATHEW 402, PARASSERIL HOUSE THELLAKOM ETTUMANOOR KOTTAYAM BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT(S): ---------------------------- 1. THE INCOME TAX OFFICER WARD -3 KOTTAYAM - 686 001 2.THE ADDITIONAL COMMISSIONER OF INCOME TAXKOTTAYAM RANGEKOTTAYAM BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DCS WP(C).No. 29525 of 2013 () APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 - TRUE COPY OF THE ORDER DATED 31.01.2013 ISSUED BY THE INCOME TAX OFFICER, WARD -3, KOTTAYAMINCOME TAX OFFICER, WARD -3, KOTTAYAM EXT.P2 - TRUE COPY OF THE NOTICE UNDER SECTION 271 D DATED 12.04.2013 ISSUED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM 12.04.2013 ISSUED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM EXT.P3 - TRUE COPY OF THE LETTER DATED 14.10.2013 ISSUED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM EXT.P4 - TRUE COPY OF THE REPLY DATED 16.05.2013 FILED BEFORE THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM RANGE, KOTTAYAM WITHOUT ANNEXURESADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM RANGE, KOTTAYAM WITHOUT ANNEXURES EXT.P5- TRUE COPY OF THE REPLY DATED 16.10.2013 FILED BEFORE THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAMADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM EXT.P6- TRUE COPY OF THE LETTER DATED 25.10.2013 FILED BEFORE THEADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAMADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM EXT.P7- TRUE COPY OF THE LETTER DATED 26.10.2013 FILED BEFORE THEADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM WITHOUT ANNEXURESADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM WITHOUT ANNEXURES EXT.P8 - TRUE COPY OF THE NOTICE OF DEMAND AND ORDER DATED 30.10.2013 IMPOSING PENALTY UNDER SECTION 271D OF THE ACT BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM 30.10.2013 IMPOSING PENALTY UNDER SECTION 271D OF THE ACT BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, KOTTAYAM RANGE, KOTTAYAM RESPONDENT'S EXHIBITS:- NIL /TRUE COPY/ P.A. TO JUDGE V.CHITAMBARESH,J. ------------------------------- W.P.(C)No.29525 of 2013 --------------------------------------- Dated this the 4[th] day of December, 2013 J U D G M E N T Ext. P8 order imposing the penalty under Section 271Dof the Income Tax Act, 1961 is impugned in this writ petition.One of the questions that arise for consideration is whetherthe loans availed by the petitioner formed the agriculturalincome of the lenders. The petitioner in short claims thebenefit of the second proviso to Section 269 SS of the IncomeTax Act, 1961. 2.Whether the lenders are agriculturists or whetherthe amounts advanced were agricultural income depends onfactual adjudication. The petitioner has got an effectiveremedy of appeal under Section 246 of the Income Tax Act,1961 against Ext. P8 order. The mere fact that certaincirculars of the Board or the decisions cited by the petitionerare not reflected in Ext. P8 order is no reason to by-pass thestatutory remedy. The writ petition is disposed of without prejudice to theright of the petitioner as above. V.CHITAMBARESH JUDGE