Wp(C)/34655/2011 Of Joshi P.mathew v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933 WPC.No. 34655 of 2011 (F) ------------------------- PETITIONER: ----------- JOSHI P.MATHEW, PANTHAMPLACKAL HOUSE, KIZHAKKAMBALAM, ERNAKULAM. BY ADVS.SRI.E.K.NANDAKUMAR SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH MENON SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.RAMESH CHERIAN JOHN RESPONDENTS: ------------ 1. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE - I, ERNAKULAM (A.O) - 682 013. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), SANJUVAN TOWERS, OLD RAILWAY STATION ROAD ERNAKULAM - 682018. 3. THE DEPUTY COMMISSIONER OF INCOME TAX (INV.) PALAKKAD - 678 014. SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS : WPC.No. 34655 of 2011 (F) ------------------------------ RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P A TO JUDGE DCS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 34655 of 2011=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=Dated this, the 25[th]day of January, 2012. J U D G M E N T Pursuant to a search conducted under Section 132 of theIncome-tax Act, proceedings for assessment of the petitioner'sincome under Section 153A of the Income-tax Act were initiated,which resulted in Exts. P1 to P6 assessment orders. Against thesame, the petitioner has filed Exts. P7 to P12 appeals. In theappeals, the petitioner raised a specific contention that sincethe search itself was illegal, the assessing authority has nojurisdiction to initiate assessment proceedings pursuant to thatsearch. The petitioner has also adduced evidence in the form ofaffidavits of panchas and has sought an opportunity to crossexamine the authorised officer of the Department tosubstantiate his contention regarding the illegality of the search.The petitioner apprehends that the appellate authority woulddispose of the appeals denying the petitioner such anopportunity. The petitioner has got another case thatproceedings have been initiated by Ext.P23 by the appellateauthority for enhancing the assessment without giving sufficientopportunity to the petitioner to file objections to the same. It isunder the above circumstances the petitioner has filed this writpetition seeking the following reliefs: “i.call for the records leading to Ext.P23 notice issued bythe 2[nd] respondent and quash the same by the issuance ofa writ of certiorari or such other writ, order or direction;the 2[nd] respondent and quash the same by the issuance ofa writ of certiorari or such other writ, order or direction; ii.issue a writ of mandamus or any other appropriate writ,order or direction, directing the 2[nd] respondent to affordorder or direction, directing the 2[nd] respondent to afford -: 2 :- the petitioner an opportunity to cross-examine thewitnesses for the purpose of substantiating hiscontentions regarding the legality of the search andalso for the purpose of putting forth its objections tothe proposal for enhancement of tax, prior toadjudication of the appeals Exts. P7 to P12. iii.To grant a stay of all further proceedings, forhearing and disposing of Exts. P7 to P12 appeals bythe 2[nd] respondent, pending disposal of the writpetition.” 2. As far as the relief in respect of Ext.P23 isconcerned, pursuant to interim orders passed in this case,the petitioner has admittedly been given sufficientopportunity to file objections, and he has filed the samealso. Therefore, no further orders are necessary in respectthereof. -: 2 :- the petitioner an opportunity to cross-examine thewitnesses for the purpose of substantiating hiscontentions regarding the legality of the search andalso for the purpose of putting forth its objections tothe proposal for enhancement of tax, prior toadjudication of the appeals Exts. P7 to P12. iii.To grant a stay of all further proceedings, forhearing and disposing of Exts. P7 to P12 appeals bythe 2[nd] respondent, pending disposal of the writpetition.” 2. As far as the relief in respect of Ext.P23 isconcerned, pursuant to interim orders passed in this case,the petitioner has admittedly been given sufficientopportunity to file objections, and he has filed the samealso. Therefore, no further orders are necessary in respectthereof. 3. As far as the other prayers are concerned, I am ofopinion that the appellate authority is bound to consider allthe contentions of the petitioner including the question as towhether the search is valid and whether the assessingauthority had jurisdiction to initiate proceedings underSection 153A on the basis of that search, if the same isinvalid. The appellate authority is also bound to considerthe request of the petitioner for cross examining theauthorised officer of the Department in accordance withthe provions of law applicable. Accordingly, this writ petition is disposed of with adirection to the 2[nd] respondent-appellate authority toconsider all the contentions of the petitioner including thecontention regarding the validity of the search and W.P(C) No. 34655 of 2011-: 3 :- consequent lack of jurisdiction. The appellate authorityshall also consider the request of the petitioner foropportunity to cross examine the authorised officer of theDepartment in accordance with the applicable provisions. Sd/- S. Siri Jagan, Judge. Tds/