Wp(C)/42235/2023 Of Sayed Muhammed M v. The Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 15 DAY OF JANUARY 2024 / 25TH POUSHA, 1945WP(C) NO. 42235 OF 2023 PETITIONER: SAYED MUHAMMED M.,AGED 40 YEARS, S/O. MUHAMMED KASIM, POONTHURA P.O, THIRUVALLAM, TC 48/1016(7) NOOR MAHAL,OPP. EDAYAR BRIDGE, THIRUVANANTHAPURAM, PIN – 695026. BY ADV. SRI. C. A. JOJO RESPONDENTS: 1THE COMMISSIONER OF INCOME TAX (APPEALS),NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI, PIN – 110001.NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI, PIN – 110001. 2THE INCOME TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI, PIN – 110001.NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI, PIN – 110001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No. 42235 of 2023 ------------------------- Dated this the 15[th] day of January, 2024 JUDGMENT 1.The present writ petitioner has been filed impugning Exhibit P-6 assessment order issued under Section 147 read with Section 144and 144B of the of the Income Tax Act, 1961 (hereinafter referred toas ‘the Act’ for short) in respect of the assessment year 2017-18 andExhibit P-11 appellate order under the provisions of Section 250 ofthe Act. 2.The petitioner, an individual did not file return of his incomefor the assessment year 2017-18. On verification, the informationavailable in Insight/AIMS/TRACES portal several transactions of highvalue were noted in the accounts of the petitioner including cashdeposits of crores of rupees. In spite of substantial financialtransactions during the financial year 2016-17 relevant toassessment year 2017-18, the petitioner did not file return of hisincome. Considering the material and information, the assessingauthority has reasons to believe that the income of the petitioner had escaped assessment and took steps to reopen the assessmentunder Section 147 of the Act. 3.Notice under Section 148 of the Act was issued on 26.03.2021 and same was duly served on the petitioner /assessee electronically.Despite service of notice, the petitioner/assessee did not file thereturn nor responded to the said notice. Further notice underSection 142(1) of the Act dated 30.10.2021 was issued with detailedquestionnaire. But the petitioner did not replied to the said noticenor answered the questionnaire. 4.Again, notice under Section 142 (1) of the Act was issued on03.12.2021 after the proceedings were transferred fromJurisdictional Assessing Officer to the Assessing Officer (ReFAC)(AU) and reminders were sent on 27.12.2021 and 03.03.2022. Ashow cause notice dated 23.03.2022 along with draft assessmentorder was issued to the petitioner. The petitioner availed the facilityof Video Conference and submitted that he was providing touroperator agency services and for the purpose of booking air ticketsand other bookings on behalf of his clients, the petitioner had usedhis personal credit card which was reimbursed by his customers.Hence the amounts expended by the petitioner/assessee was not of personal nature but incurred for business purpose. The only incomereceived by the petitioner/assessee was the commission on suchbooking which when aggregated was below the taxable limit. Thepetitioner had placed statement of credit cared for the financial year2016-17. personal nature but incurred for business purpose. The only incomereceived by the petitioner/assessee was the commission on suchbooking which when aggregated was below the taxable limit. Thepetitioner had placed statement of credit cared for the financial year2016-17. 5.Exceptforfurnishingtheaboveexplanation,petitioner/assessee did not submit any document/evidenceregarding the questions asked in the notice issued under Section142(1) of the Act. The petitioner did not submit return of his incomenor submitted any computation of income, profit and loss, BalanceSheet or bank statements. Considering the said response theassessment order was finalised finding unexplained cash depositsunder Section 69A of the Act for an amount of Rs. 1,15,03,870/- andprofit from business and profession as Rs. 2,44,008/- and thus thetotal income in the hands of the petitioner was assessed as Rs.1,17,47,880/- for the assessment year 2017-18. On the said amount,the tax has been demanded. The petitioner had filed the appealbefore the 2[nd] respondent. However, the appeal came to bedismissed by the impugned order in Exhibit P-11. 6. This Court finds absolutely no ground to entertain a writ petition against the appellate order when the petitioner has remedyof filing further appeal before the Income Tax Appellate Tribunalunder the provisions of the Act. Thus, the present writ petition isdisposed of with liberty to the petitioner to approach the IncomeTax Appellate Tribunal if he so advised against the impugned ExhibitP-11 order. However, this Court cannot exercise its discretionarypower under Article 226 of the Constitution of India which is a publiclaw remedy and not an appellate power vested against an orderpassed by the assessing authority or the appellate authority underthe provisions of the Act. Svn Sd/-DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 42235/2023 PETITIONER’S EXHIBITS