Wp(C)/38101/2008 Of Dr. R.p.patel, Hahneman House v. The Asst. Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 18TH DAY OF FEBRUARY 2015/29TH MAGHA, 1936 WP(C).No. 38101 of 2008 (J) ---------------------------- PETITIONER : ------------------ DR. R.P.PATEL, HAHNEMAN HOUSE, COLLEGE ROAD, KOTTAYAM. BY ADVS.SRI.P.BALAKRISHNAN (E) SRI.RAMESH CHERIAN JOHN RESPONDENTS : ----------------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1, KOTTAYAM. CIRCLE-1, KOTTAYAM. 2. THE ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, FIRST FLOOR BLOCK CI & C2, KENDRIYA BHAVAN, OPPOSITE CSEZ KAKKANAD, COCHIN - 682 037. INCOME TAX APPELLATE TRIBUNAL, FIRST FLOOR BLOCK CI & C2, KENDRIYA BHAVAN, OPPOSITE CSEZ KAKKANAD, COCHIN - 682 037. 3. INCOME TAX APPELLATE TRIBUNAL, FIRST FLOOR, BLOCK CI & C2, KENDRIYA BHAVAN, OPPOSITE CSEZ, KAKKANAD, COCHIN - 682 037. FIRST FLOOR, BLOCK CI & C2, KENDRIYA BHAVAN, OPPOSITE CSEZ, KAKKANAD, COCHIN - 682 037. 4. THE COMMISSIONR OF INCOME TAX PUBLIC LIBRARY BUILDING, SHASHTRI ROAD, KOTTAYAM - 686001 PUBLIC LIBRARY BUILDING, SHASHTRI ROAD, KOTTAYAM - 686001 R1 BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX BY ADV. SHRI.A.K.JOHN, CGC R2 BY SRI. NAGARESH, ASSISTANT SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 38101 of 2008 (J) APPENDIX PETITIONER'S EXHIBITS : P1:COPY OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) DT 29/9/2008.DT 29/9/2008. P2:COPY OF THE FORM OF APPEAL AND GROUNDS OF APPEAL FOR THE ASST. YEAR 1991-92.YEAR 1991-92. P3:COPY OF THE FORM OF APPEAL AND GROUNDS OF APPEAL FOR THE ASST. YEAR 1991/93YEAR 1991/93 P4:COPY OF THE FORM OF APPEAL AND GROUNDS OF APPEAL FOR THE ASST. YEAR 1993-94.YEAR 1993-94. P5:COPY OF THE FORM OF APPEAL AND GROUNDS OF APPEAL FOR THE ASST. YEAR 1994-95.YEAR 1994-95. P6:COPY OF THE FORM F APPEAL AND GROUNDS OF APPEAL FOR THE ASST. YEAR -1995-96.YEAR -1995-96. P7:COPY OF THE COMMUNICATION DT 2/12/2008 FOR THE ASST. YEAR 1991-92. P8:COPY OF THE LETTER NO. 1567/08 DT 4/12/2008. P9:COPY OF THE NOTICE DT 13/12/2008 ISSUED BY THE R1. P10:COPY OF THE STAY PETITION DT 17/12/2008. P10A: COPY OF THE LOCAL DELIVERY BOOK ACKNOWLEDGING THE STAY PETITION.PETITION. P11:COPY OF THE LETTER DT 19/12/2008. P12:COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT DT 26/12/2008. P13:COPY OF THE ORDER OF THIS HON'BLE COURT DT 7/7/2009, EXTENDING THESTAY UNTIL FURTHER ORDER.STAY UNTIL FURTHER ORDER. P14:COPY OF THE GARNISHEE NOTICE DT 8/8/2008 ISSUED UNDER S. 226(3) OF THE ACT.THE ACT. P15:COPY OF THE GARNISHEE NOTICE DT 8/8/2008 ISSUED UNDER S. 226(3) OF THE ACT.THE ACT. P16:COPY OF THE JUDGMENT IN WPC N. 24405 OF 2008. P17:COPY OF THE REPRESENTATION DT 6/7/2012 MADE TO THE ASST. COMMISSIONER OF INCOME TAX, KOTTAYAM (R1)COMMISSIONER OF INCOME TAX, KOTTAYAM (R1) WP(C).NO. 38101 OF 2008 (J) P18:COPY OF THE REPRESENTATION DT 16/8/2012 MADE TO THE ASST. COMMISSIONER OF INCOME TAX, KOTTAYAM (R1).COMMISSIONER OF INCOME TAX, KOTTAYAM (R1). P19:COPY OF THE REPRESENTATION DT 21/8/2012 MADE TO THE ASST. COMMISSIONER OF INCOME TAX, KOTTAYAM (R1).COMMISSIONER OF INCOME TAX, KOTTAYAM (R1). P20:COPY OF THE PETITION DT 26/2/2013 MADE TO THE R4. P21:COPY OF THE ORDER DT 6/11/2013 PASSED BY THE R4. RESPONDENT'S EXHIBITS :NIL. //TRUE COPY// P.A. TO JUDGE K. Vinod Chandran, J. ====================================W.P.(C)No.38101 of 2008W.P.(C)No.38101 of 2008==================================== Dated this the 18[th] day of February, 2015. JUDGMENT WP(C).NO. 38101 OF 2008 (J) P18:COPY OF THE REPRESENTATION DT 16/8/2012 MADE TO THE ASST. COMMISSIONER OF INCOME TAX, KOTTAYAM (R1).COMMISSIONER OF INCOME TAX, KOTTAYAM (R1). P19:COPY OF THE REPRESENTATION DT 21/8/2012 MADE TO THE ASST. COMMISSIONER OF INCOME TAX, KOTTAYAM (R1).COMMISSIONER OF INCOME TAX, KOTTAYAM (R1). P20:COPY OF THE PETITION DT 26/2/2013 MADE TO THE R4. P21:COPY OF THE ORDER DT 6/11/2013 PASSED BY THE R4. RESPONDENT'S EXHIBITS :NIL. //TRUE COPY// P.A. TO JUDGE K. Vinod Chandran, J. ====================================W.P.(C)No.38101 of 2008W.P.(C)No.38101 of 2008==================================== Dated this the 18[th] day of February, 2015. JUDGMENT 1. Petitioner, by the above writ petition, impugn the action of theTribunal, in refusing to take on file, an appeal filed against Ext.P1order. The refusal of the Tribunal was on account of the non-payment of court fee, as prescribed under Section 253(6) of theIncome Tax Act, 1961. While the petitioner contended that onlyRs.500 is payable, since Ext.P1 is an order in 1[st] appeal, from anorder of penalty imposed; the Tribunal was of the view that, the courtfee would have to be paid, on the basis of the amount computed and demanded as per clause (c) of sub-section 6 of Section 253. 2. Since the appeals were not entertained, the petitioner was alsoaggrieved with the demand raised and the garnishee proceedings,which were also challenged in the above writ petition. The writ petition was admitted and stay was granted. Now the petitionercontends that, the Tribunal has been accepting appeals from penaltyorders, on remittance of court fee of Rs.500, as is provided underclause (d) of sub-section (6) of Section 253. However, the appealsare those filed, as early as in 2001 and an expeditious disposal issought for, especially on the ground of the petitioners advancing ageand the petitioners account having been frozen. 3. The brief facts to be noticed are that; during 1991-92 to 1995-96,proceedings for assessment of escaped income was initiated and afterassessment, penalty too was imposed. The 1[st] appeal, filed againstthe penalty order, ended in Ext.P1 order, reducing the penaltyimposed from Rs.50,68,000/- to Rs.38,72,130/-. 4. The assessment as such is not a concern of this writ petition. Noticeof demand, for the reduced penalty, was issued at Ext.P9. Garnisheeproceedings, Exts.P14 and P15 remained as such; as against theoriginal proceedings. Petitioner has considerable grievance on that count also. But, in any event, now the matter has been pending forfive years and definitely, there would be interest due as per the Act,since the amounts have not been remitted to the Revenue. 5. With respect to the court fee payable, a plain reading of Section 253 (6) would indicate that clauses (a) to (c) speaks of assessment of totalincome and the amounts demanded now, is not on assessment; but ofpenalty imposed. Even before this Court the controversy arose as towhat would be the court fee payable, on an appeal from penalty; andthis Court has admitted the Income Tax Appeals, on remittance ofRs.500 in accordance with; the in pari materia provisions under theKerala Court Fees and Suit Valuation Act,1959. 6. The submission of the learned counsel is that the Tribunal too is, atpresent, accepting appeals against penalty, on remittance of court feeunder Clause (d) of sub-section (6) of Section 253. Hence, theappeals, Exts.P2 to P6, in which Rs.500 each have been paid, shallbe accepted to the files of the Tribunal and the same would bepresent, accepting appeals against penalty, on remittance of court feeunder Clause (d) of sub-section (6) of Section 253. Hence, theappeals, Exts.P2 to P6, in which Rs.500 each have been paid, shallbe accepted to the files of the Tribunal and the same would be 6. The submission of the learned counsel is that the Tribunal too is, atpresent, accepting appeals against penalty, on remittance of court feeunder Clause (d) of sub-section (6) of Section 253. Hence, theappeals, Exts.P2 to P6, in which Rs.500 each have been paid, shallbe accepted to the files of the Tribunal and the same would bepresent, accepting appeals against penalty, on remittance of court feeunder Clause (d) of sub-section (6) of Section 253. Hence, theappeals, Exts.P2 to P6, in which Rs.500 each have been paid, shallbe accepted to the files of the Tribunal and the same would be considered, expeditiously. Petitioner and the authorisedrepresentative of the Revenue, shall appear before the Tribunal on3.3.2015. The Tribunal shall take up the matter and after affordingreasonable opportunity, dispose of the same, within a period of sixmonths from 3.3.2015. The garnishee orders at Exts.P14 and P15 forthe moment shall continue. No demand shall be raised against thepetitioner while the appeal is considered and disposed of. Thedemand, as also the garnishee orders, shall be modified, if anyfurther modification is made by the Tribunal.Writ petition is disposed off. K. Vinod Chandran, Judge. sl.