Wp(C)/6096/2011 Of C.p.abdul Nizar v. The Income Tax Officer And Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI TUESDAY, THE 25TH DAY OF FEBRUARY 2014/6TH PHALGUNA, 1935 WP(C).No. 6096 of 2011 (J) ------------------------------------- PETITIONER: ------------------- C.P.ABDUL NIZAR, S/O.MUHAMMED, AGED 50 YEARS, RESIDING AT PAUL ABROW RDS, FLAT NO.7B, KACHERIPADY, ERNAKULAM, KOCHI-18, PROPRIETOR, NEW GULF MOBILE SUPER BAZAR, GROUND FLOOR, G.C.D.A.COMPLEX, MARINE DRIVE, KOCHI – 31, ERNAKULAM DISTRICT. BY ADVS.SRI.UNISE MOHAMED KUNJU, SRI.SAKIR.K.H.. RESPONDENTS: ----------------------- 1. THE INCOME TAX OFFICER, WARD 2(2), ERNAKULAM, KOCHI - 18. WARD 2(2), ERNAKULAM, KOCHI - 18. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(1), ERNAKULAM, KOCHI - 18. 3. THE COMMISSIONER OF INCOME TAX (APPEALS), OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI – 18. OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI – 18. BY SRI.JOSE JOSEPH, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C).NO.6096/2011-J: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1: TRUE COPY OF THE NOTICE DTD. 31/08/2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.RESPONDENT TO THE PETITIONER. EXT.P.2: TRUE COPY OF THE WRITTEN REQUEST DTD. 25/09/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P.3: TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE PETITIONER.PETITIONER. EXT.P.4: TRUE COPY OF ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2008-09 DTD. NIL. ALONG WITH THE SHOW CAUSE NOTICE DTD. 30/11/2010 ISSUED BY THE 2ND RESPONDENT.2008-09 DTD. NIL. ALONG WITH THE SHOW CAUSE NOTICE DTD. 30/11/2010 ISSUED BY THE 2ND RESPONDENT. EXT.P.5: TRUE COPY OF THE ENVELOP CONTAINED EXHIBIT P4 ASSESSMENT ORDER AND THE NOTICE TO SHOW CAUSE DTD. 30/11/2010.ORDER AND THE NOTICE TO SHOW CAUSE DTD. 30/11/2010. EXT.P.6: TRUE COPY OF THE REQUEST DTD. 16/02/2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. A.V.RAMAKRISHNA PILLAI, J --------------------------------------------- W.P.(C) No.6096 of 2011 --------------------------------------------- Dated this the 25[th] day of February, 2014 JUDGMENT Alleging that coercive steps including revenue recoveryaction was going to be initiated by the respondents againstthe petitioner for the recovery of tax arrears for theassessment year 2008-2009, the petitioner has come upbefore this Court. 2. The petitioner is doing the business of mobilephones and its accessories under the name and style of M/s New Gulf Mobile Super Bazar at GCDA Complex, Kochi.According to the petitioner, the first respondent completedthe assessment with regard to the said firm of the petitionerfor the assessment year 2008-2009. 3. The petitioner alleges that as the case of thepetitioner was selected for scrutiny in CASS, the firstrespondent issued Ext.P1 notice dated 31.8.2009 under WPC No.6096/2011 2 Section 143(2) of the Income Tax Act to the petitionerrequesting to appear on 28.9.2009 for producing theinformation and documents. 4. The petitioner further alleges that as theaccountant of the petitioner has gone on leave for C.A.examination on 25.9.2009, he submitted Ext.P2 writtenrequest for an adjournment and the same was allowed. New Gulf Mobile Super Bazar at GCDA Complex, Kochi.According to the petitioner, the first respondent completedthe assessment with regard to the said firm of the petitionerfor the assessment year 2008-2009. 3. The petitioner alleges that as the case of thepetitioner was selected for scrutiny in CASS, the firstrespondent issued Ext.P1 notice dated 31.8.2009 under WPC No.6096/2011 2 Section 143(2) of the Income Tax Act to the petitionerrequesting to appear on 28.9.2009 for producing theinformation and documents. 4. The petitioner further alleges that as theaccountant of the petitioner has gone on leave for C.A.examination on 25.9.2009, he submitted Ext.P2 writtenrequest for an adjournment and the same was allowed. 5. He would further alleges that in order to study thescope of new developments and chances in the trading ofmobile phone, he has gone to China during the year2009-2010 and therefore, he could not appear before thesecond respondent at the time when he was called toappear. On account of that, it ended in not receivingnotices from the second respondent. Therefore, thesecond respondent completed the assessment for theyear 2008-2009 and passed Ext.P4 judgment/assessment order in accordance with Section 144 of theIncome Tax Act directing to remit the sales tax, i.e.`8,50,360/-. Along with that, the petitioner was servedwith the demand notice and notice to show cause whypenalty under S.271(1)(b) and S.271(1)(c) of the Income WPC No.6096/2011 3 Tax Act, 1961 shall not be imposed. The date fixed forappearance was 28.12.2010. According to the petitioner,all those communications were received by the petitioneronly on 24.1.2011 as evidenced from Ext.P5 envelop andtherefore, the petitioner could not go for showing thereasons. 6. The petitioner further alleges that in order toprepare an appeal for obtaining the certified copy of thedetailed questionnaire dated 6.1.2010 issued by thesecond respondent and all the notices stated to beissued, he submitted Ext.P6 request dated 16.2.2011before the second respondent. However, he wasinformed by the office of the second respondent that asthe time for filing the appeal has already been elapsed,coercive steps including revenue recovery steps are goingto be initiated against the petitioner. Thus, he has comeup before this Court. 7. This Court, as per interim order dated 9.3.2011,directed that the recovery of the amount covered underthe assessment order shall be kept in abeyance tillinstructions are received from the respondents. WPC No.6096/2011 4 As it appears from record that the limited purpose of filing this writ petition was to get a breathing time toprefer an appeal against the assessment order, this Courtis of the definite view that there is no necessity of keepingthis writ petition pending, especially, in the light of the factthat there was no representation for the petitioner whenthe mater was called up. Therefore, this writ petition isclosed, without examining the merits. sd/- A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE