Wp(C)/39333/2018 Of P.v.thomas v. The Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940 WP(C).No. 39333 of 2018 PETITIONER/S: P.V.THOMAS,POOTHARAYIL HOSUEAYMANAM P.O., KOTTAYAM-686 015. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIARSRI.JOSON MANAVALANSRI.K.JOHN MATHAISRI.KURYAN THOMASSRI.PAULOSE C. ABRAHAMSRI.P.GOPINATH (SR.) RESPONDENT/S: 1THE COMMISSIONER OF INCOME TAX (APPEALS)OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS), PUBLIC LIBRARY BUILDINGSASTRI ROAD, KOTTAYAM-686 001.2THE INCOME TAX OFFICER,WARD-5, KOTTAYAMPUBLIC LIBRARY BUILDING, SASTRI ROADKOTTAYAM-686 001. BY ADVS.SRI.P.K.R.MENON,SENIOR COUNSEL, GOI(TAXES)SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner had his income tax assessed for the year 2015-2016 under Section 143(3) of the Income Tax Act. The addition is saidto have been based on the concession made by the petitioner'sauthorised representative, who attended the hearing. Questioningthat assessment, the petitioner has filed a statutory appeal andinvited the Ext.P2 order. Essentially, the appellate authority has heldthat as the petitioner, through his authorised representative,conceded to the assessment, there cannot be an adjudication of whathas already been conceded. Further aggrieved, the petitioner hasfiled this Writ Petition. 2.In response to the submissions made by the petitioner'scounsel, the learned Standing Counsel has submitted that the WritPetition involves purely a disputed question of fact: has thepetitioner's authorised representative conceded to the additionproposed by the assessing authority? Therefore, the petitionerought to have exhausted the further appellate remedy under Section253. 3.In reply, the petitioner's counsel has contended that the alleged concession was denied immediately; the petitioner, in fact,communicated to the assessing authority to that effect, as seen fromthe Ext.P3. But the appellate authority has extracted only thealleged concession, but not the denial which was close on the heels,though. He has also underlined the expansion scope of Article 226 ofthe Constitution of India and asserted that merely because a suitorhas an alternative remedy, this Court need not shut him out fromhaving his grievance redressed. If the suitor could otherwisedemonstrate before the Constitutional Court that this case needsurgent redressal, it ought to interfere in the interest of justice. 4.Heard the learned counsel for the petitioner and also thelearned Government Pleader for the respondents. 5.Attractive as the petitioner's submissions are, I am afraidhe has travelled the statutory path half way: exhausted one appellateremedy. Then he felt shy of proceeding further. Then he turnsaround and approaches this Court, laching on to Article 226. 6.As rightly contended by the learned Standing Counsel, there involve disputed questions of fact whether; that is, thepetitioner's authorised representative has conceded to the addition WP(C).No. 39333 of 2018 and whether that stands nullified because of the petitioner'simmediate assertion to the contrary as set out in the Ext.P3. 7.I reckon whatever the relief the petitioner has soughtbefore this Court can as well be granted by the Income Tax Appellate Tribunal. Therefore, the remedy thus available to the petitioner isefficacious, too. 8.Under these circumstances, without adverting to themerits, I close this Writ Petition leaving it open for the petitioner toapproach the Appellate Tribunal. Under these circumstances, without adverting to the 6.As rightly contended by the learned Standing Counsel, there involve disputed questions of fact whether; that is, thepetitioner's authorised representative has conceded to the addition WP(C).No. 39333 of 2018 and whether that stands nullified because of the petitioner'simmediate assertion to the contrary as set out in the Ext.P3. 7.I reckon whatever the relief the petitioner has soughtbefore this Court can as well be granted by the Income Tax Appellate Tribunal. Therefore, the remedy thus available to the petitioner isefficacious, too. 8.Under these circumstances, without adverting to themerits, I close this Writ Petition leaving it open for the petitioner toapproach the Appellate Tribunal. Under these circumstances, without adverting to the As the petitioner has bonafide pursued the litigation till now;for limitation, the Tribunal will exclude the period the petitioner hasspent before this Court. Besides, to enable the petitioner to exhaustthe appellate remedy, the authorities will defer coercive steps forthirty days from now. Sd/- DAMA SESHADRI NAIDU JUDGE PETITIONER'S/S EXHIBITS: EXHIBIT P1EXHIBIT P2sd APPENDIX TRUE COPY OF THE ASSESSMENT ORDER DATED 28.6.2017.TRUE COPY OF THE ORDER DATED 6.8.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS).