Wp(C)/7182/2015 Of G.sunilkumar v. The Deputy Director Of Income Tax Central Circle

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 6TH DAY OF MARCH 2015/15TH PHALGUNA, 1936 WP(C).No. 7182 of 2015 (W) --------------------------- PETITIONER(S): -------------- 1.G.SUNILKUMAR, SUNEETRON AGENCIES, M.C.ROAD, THIRUVALLA - 689 101. 2 SMT.INDU SUNILKUMAR, SRAVANAM, POWER HOUSE ROAD, THIRUVALLA - 689 101. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT(S): --------------- 1. THE DEPUTY DIRECTOR OF INCOME TAX CENTRAL CIRCLE,PUBLIC LIBRARY BUILDINGS, SASTHRI ROAD,KOTTAYAM - 686 001. 2. THE COMMISSIONER OF INCOME TAX (APPEALS)-IV, KERA BHAVAN, KOCHI- 682 018 3. THE ADDITIONAL DIRECTOR OF INCOME TAX, PALAKKAD - 678 014. BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX & THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rvs. APPENDIX PETITIONER(S)' EXHIBITS :----------------------- EXT.P23 - TRUE COPY OF THE APPEAL FOR THE ASSESSMENT FOR THE YEAR2004-05 FILED BY THE 2ND PETITIONER.2004-05 FILED BY THE 2ND PETITIONER.EXT.P24 - TRUE COPY OF THE APPEAL FOR THE ASSESSMENT FOR THE YEAR2005-06 FILED BY THE 2ND PETITIONER.2005-06 FILED BY THE 2ND PETITIONER.EXT.P25 - TRUE COPY OF THE APPEAL FOR THE ASSESSMENT FOR THE YEAR2006-07 FILED BY THE 2ND PETITIONER.2006-07 FILED BY THE 2ND PETITIONER.EXT.P26 - TRUE COPY OF THE APPEAL FOR THE ASSESSMENT FOR THE YEAR2007-08 FILED BY THE 2ND PETITIONER.2007-08 FILED BY THE 2ND PETITIONER.EXT.P27 - TRUE COPY OF THE APPEAL FOR THE ASSESSMENT FOR THE YEAR2008-09 FILED BY THE 2ND PETITIONER.2008-09 FILED BY THE 2ND PETITIONER.EXT.P28 - TRUE COPY OF THE APPEAL FOR THE ASSESSMENT FOR THE YEAR2009-10 FILED BY THE 2ND PETITIONER.2009-10 FILED BY THE 2ND PETITIONER.EXT.P29 - TRUE COPY OF THE SUMMARY OF ARGUMENTS OF THE 1STPETITIONER FOR THE YEAR 2003-04.PETITIONER FOR THE YEAR 2003-04.EXT.P29A - TRUE COPY OF THE SUMMARY OF ARGUMENTS (PRELIMINARY) OFTHE 2ND PETITIONER FOR THE YEAR 2003-04 TO 2009-10.THE 2ND PETITIONER FOR THE YEAR 2003-04 TO 2009-10.EXT.P30 -TRUE COPY OF THE LETTER DT.23-1-2015 FILED BEFORE THE2ND RESPONDENT.2ND RESPONDENT.EXT.P31 - TRUE COPY OF THE LETTER DT.23-1-2015 FILED BEFORE THE2ND RESPONDENT.2ND RESPONDENT.EXT.P32 - TRUE COPY OF THE LETTER DT.5-2-2015 FILED BEFORE THE2ND RESPONDENT.2ND RESPONDENT.EXT.P33 - TRUE COPY OF THE POSTING NOTICE DT.23-2-2015 ISSUED TOTHE 1ST PETITIONER.THE 1ST PETITIONER.EXT.P34 - TRUE COPY OF THE POSTING NOTICE DT.23-2-2015 ISSUED TOTHE 2ND PETITIONER.THE 2ND PETITIONER.EXT.P35 - TRUE COPY OF THE JUDGMENT DT.25-1-2012 IN WPC NO.34655OF 2011.OF 2011. RESPONDENT(S)' EXHIBITS : NIL. /TRUE COPY/ RVS. P.A.TO JUDGE A.K.JAYASANKARAN NAMBIAR, J. .............................................................W.P.(C).No.7182 of 2015 .............................................................Dated this the 6[th] day of March, 2015 J U D G M E N T RESPONDENT(S)' EXHIBITS : NIL. /TRUE COPY/ RVS. P.A.TO JUDGE A.K.JAYASANKARAN NAMBIAR, J. .............................................................W.P.(C).No.7182 of 2015 .............................................................Dated this the 6[th] day of March, 2015 J U D G M E N T Against Exts.P1 to P14 orders passed under Section 143 (3)read with Section 153 C of the Income Tax Act, the petitioners havepreferred Exts.P15 to P28 appeals before the 2[nd] respondent. Oneof the contention taken by the petitioners in the appeals before the2[nd] respondent is that the whole assessment procedure was vitiatedon account of the fact that the assessing authority had relied on thematerials obtained during the course of the search and the searchwas not witnessed by any 'Panchas'. It is the contention of thepetitioners that on account of there being no 'Panchas' at the timeof search, the search proceedings itself is vitiated, and hence,materials obtained during the said search could not be relied uponfor the purposes of completing the assessment against thepetitioners. It is stated by counsel for the petitioners that theappeals are now proposed to be heard by the 2[nd] respondent, andthe petitioner's request for a cross examination of witnesses, so asto substantiate his contentions with regard to the jurisdiction of theauthorities who conducted the search, and the legality of thesearch itself, has not been gone into prior to a consideration of the appeals on merits, In the writ petition, therefore, the petitionersseeks a direction to the 2[nd] respondent to offer the petitioners anopportunity to cross examine the authorised officer and witnessesfor the purposes of substantiating their contention regarding theillegality of the search, prior to the adjudication of the appeals onmerits. 2. I have heard Sri.Ramesh Cheiran John, the learned counselfor the petitioners and Sri.Jose Joseph, the learned Standingcounsel for the respondent bank. 3. On a consideration of the facts and circumstances of thecase as also the submissions made across the bar, and inparticular, the submissions with regard to the issue of legality ofthe search, that is urged in the appeals filed by the petitionersbefore the 2[nd] respondent appellate authority, I am of the view that,it would be incumbent upon the appellate authority to consider thecontention of the petitioners with regard to the validity of thesearch, as also on the aspect of whether the assessing authorityhad jurisdiction to initiate proceedings under Section 153A on thebasis of that search, prior to deciding the issue on merits. Theappellate authority would also be required to consider the request of the petitioners for cross examining the Authorised Officer of theDepartment in accordance with the provisions of law applicable. I,therefore, dispose the writ petition with a direction to the 2[nd]respondent appellate authority to consider the said contention ofthe petitioners, including the contention regarding validity ofsearch and consequent lack of jurisdiction. The appellate authorityshall also consider the request of the petitioners for an opportunityto cross examine the witnesses and the Authorised Officer of theDepartment in accordance with the applicable provisions. The 2[nd]respondent appellate authority shall do this prior to proceedingwith the appeal on merits. The writ petition is disposed of as above. A.K.JAYASANKARAN NAMBIAR JUDGE mns