Wp(C)/7360/2009 Of K.k.sebastian v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 12 DAY OF OCTOBER 2022 / 20TH ASWINA, 1944 WP(C) NO. 22751 OF 2008 PETITIONER: K.K.THOMAS, ANATHANAM HOUSE,KANJIRAPPILLY.BY ADVS.SRI.V.M.KURIANSRI.MATHEW B. KURIANSRI.C.N.SREEKUMARSRI.K.T.THOMAS RESPONDENTS: 1THE COMMISSIONER OF INCOME TAX,C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI-18.2INCOME TAX OFFICER, WARD IERNAKULAM, C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI - 18.3TAX RECOVERY OFFICER, RANGE I,ERNAKULAM.BY ADV SRI.JOSE JOSEPH, SC FOR INCOME TAXSRI.GEORG K.GEORGE, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON12.10.2022, ALONG WITH WP(C).7360/2009, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 12 DAY OF OCTOBER 2022 / 20TH ASWINA, 1944WP(C) NO. 7360 OF 2009 PETITIONER: K.K.SEBASTIAN, ANATHANAM HOUSE,142, KURIANS ROAD, THRIKKAKARA, KOCHI-21.BY ADVS.SRI.JOSEPH KODIANTHARASRI.B.J.JOHN PRAKASHSRI.TERRY V.JAMES RESPONDENTS: 1THE COMMISSIONER OF INCOME TAXC.R.BUILDINGS, I.S.PRESS ROAD, KOCHI.18.2INCOME TAX OFFICERWARD I, ERNAKULAM, C.R.BUILDINGS, I.S.PRESS ROAD, KOCHI-18.3TAX RECOVERY OFFICERRANGE I, ERNAKULAM.BY ADV SRI.JOSE JOSEPH, SC, FOR INCOME TAXSRI.GEORG K.GEORGE, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 12.10.2022, ALONG WITH WP(C).22751/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 22751/08 & 7360/09 P.V.KUNHIKRISHNAN, J. ------------------------------ W.P.(C).Nos. 22751 of 2008 and 7360 of 2009 ---------------------------------------------- Dated this the 12[th]day of October, 2022 JUDGMENT These two writ petitions are connected and therefore, I am disposing of these two writ petitions by acommon judgment. 2.W.P.(C)No.22751 of 2008 is filed with thefollowing prayers: “a) issue a writ of certiorari or other appropriatewrit, order or direction quashing Ext.P15 order passedby the 1st respondent Ext.P13 order passed by the 2ndrespondent. b) issue a writ of certiorari or other appropriatewrit, order or direction quashing Ext.P16 notice issuedby the 3rd respondent. c) to declare that the petitioner is not liable topay the tax due from the company for the year 1992-93 and 1993-94. d) grant such other and further reliefs as thisHon’ble Court may deem fit to grant in the facts and circumstances of the case.” 3. The above writ petition relates to the payment of tax for the assessment year 1992 – 93 and 1993 –94. 4.W.P.(C)No.7360 of 2009 is filed with thefollowing prayers: “(i) issue a writ of certiorari or other appropriatewrit, order or direction quashing Exhibit-P14 and P16orders and P17 and P19 demand notices; (ii)Declare that the Petitioner is not liable forany income tax dues from the said Metro Stocks andShares Pvt Ltd. (iii)Stay the operation of and furtherproceedings pursuant to Exts.P17 and P19 includingrecovery of the amounts demanded therein; (iv)Grant such other and further reliefs as this Hon’ble Court may deem fit to grant in the facts andcircumstances of the case.” 5.The above writ petition relates to the payment of tax for the assessment year 1992 – 93 and 1993 –94. These writ petitions are filed by the Directors of a private Limited Company. 4.W.P.(C)No.7360 of 2009 is filed with thefollowing prayers: “(i) issue a writ of certiorari or other appropriatewrit, order or direction quashing Exhibit-P14 and P16orders and P17 and P19 demand notices; (ii)Declare that the Petitioner is not liable forany income tax dues from the said Metro Stocks andShares Pvt Ltd. (iii)Stay the operation of and furtherproceedings pursuant to Exts.P17 and P19 includingrecovery of the amounts demanded therein; (iv)Grant such other and further reliefs as this Hon’ble Court may deem fit to grant in the facts andcircumstances of the case.” 5.The above writ petition relates to the payment of tax for the assessment year 1992 – 93 and 1993 –94. These writ petitions are filed by the Directors of a private Limited Company. 6.When these writ petitions came up forconsideration, both sides submitted that, as far as theassessment year 1992 -93 is concerned, the entiredemand has been settled as per the Direct Tax Vivad SeVishwas Rules, 2020. But as far as the dispute withregard to the assessment year 1993 – 94 is concerned,the matter is pending before the appellate Tribunal.Therefore, these writ petitions can be closed grantingliberty to the petitioners to raise all their contentionsbefore the appellate Tribunal as far as the assessmentyear 1993 – 94 is concerned and the demand underSection 179(1) can be quashed as far as the assessmentyear 1992 – 93 is concerned. Therefore, these writ petition are disposed of in thefollowing manner: i)Ext.P14 in W.P.(C)No.7360 of 2009 andExt.P13 in W.P.(C)No.22751 of 2008 are quashed, as far as the assessment year 1992 – 93 is concerned. ii)All other contentions raised in these writpetitions based on the assessment year 1993 -94 is leftopen and the department is free to take appropriatesteps based on the decision of the Tribunal. All other contentions raised in these writ iii)Petitioners are also free to take appropriatesteps in accordance to law based on the decision of theTribunal. Petitioners are also free to take appropriate DM Sd/- P.V.KUNHIKRISHNANJUDGE APPENDIX OF WP(C) 7360/2009 PETITIONER EXHIBITSEXHIBIT P1TRUE COPY OF DEMAND NOTICE DATED 21-9-2004 ISSUED BY THE 3RD RESPONDENTEXHIBIT P2TRUE COPY OF OBJECTION DATED 30-10-2004 SUBMITTED TO THE 2ND RESPONDENTEXHIBIT P3TRUE COPY OF AUDIT REPORT DATED 20-12-1991 ALONG WITH SUMMARY STATEMENTOF THE PROFIT AND LOSS ACCOUNTEXHIBIT P4TRUE COPY OF THE SUMMONS DATED 26-11-1993 ISSUED TO THE COMPANY BY THEASSESSING AUTHORITY.EXHIBIT P5TRUE COPY OF ORDER DATED 16-2-1995ISSUED BY THE ASSESSING AUTHORITYEXHIBIT P6TRUE COPY OF LETTER DATED 8-9-1995 OFTHE CHAIRMAN OF THE COMPANY TO THE2ND RESPONDENTEXHIBIT P7TRUE COPY OF ASSESSMENT ORDER DATED25-9-1995 EXHIBIT P8TRUE COPY OF THE APPEAL GROUNDS FILEDBEFORE THE CIT (APPEALS) EXHIBIT P9TRUE COPY OF NOTICE DATED 5-1-2007ISSUED TO THE PETITIONEREXHIBIT P10TRUE COPY OF OBJECTIONS DATED 24-1-2007 FILED BY THE PETITIONER.EXHIBIT P11TRUE COPY OF REVISED ORDER DATED 9-1-2008 OF THE COMMISSIONER (APPEALS)EXHIBIT P12TRUE COPY OF THE PROCEEDINGS DATED27-7-2004 OF THE 3RD RESPONDENTEXHIBIT P13TRUE COPY OF THE ORDER DATED 17-3-2008 OF THE 3RD RESPONDENT.EXHIBIT P14TRUE COPY OF ORDER DATED 30-4-2007 OF THE 2ND RESPONDENT.EXHIBIT P15TRUE COPY OF PETITIONER'S REVISIONPETITION DATED 4-7-2007 FILED BEFORETHE 1ST RESPONDENT.EXHIBIT P16TRUE COPY OF ORDER DATED 22-4-2008 OFTHE 1ST RESPONDENT IN EXHIBIT-P15.EXHIBIT P17TRUE COPY OF NOTICE DATED 27-3-2008ISSUED TO THE PETITIONER BY THE 3RDRESPONDENT. EXHIBIT P18TRUE COPY OF REPLY DATED 7-4-2008FILED BY THE PETITIONER BEFORE THE3RD RESPONDENT.EXHIBIT P19TRUE COPY OF NOTICE DATED 16-12-2008ISSUED TO THE PETITIONER BY THE 3RDRESPONDENT. RESPONDENTS EXHIBITS: NIL 9 APPENDIX OF WP(C) 22751/2008 THE 2ND RESPONDENT.EXHIBIT P15TRUE COPY OF PETITIONER'S REVISIONPETITION DATED 4-7-2007 FILED BEFORETHE 1ST RESPONDENT.EXHIBIT P16TRUE COPY OF ORDER DATED 22-4-2008 OFTHE 1ST RESPONDENT IN EXHIBIT-P15.EXHIBIT P17TRUE COPY OF NOTICE DATED 27-3-2008ISSUED TO THE PETITIONER BY THE 3RDRESPONDENT. EXHIBIT P18TRUE COPY OF REPLY DATED 7-4-2008FILED BY THE PETITIONER BEFORE THE3RD RESPONDENT.EXHIBIT P19TRUE COPY OF NOTICE DATED 16-12-2008ISSUED TO THE PETITIONER BY THE 3RDRESPONDENT. RESPONDENTS EXHIBITS: NIL 9 APPENDIX OF WP(C) 22751/2008 EXHIBIT P12TRUE COPY OF THE PROCEEDINGS DATED17.03.2008.EXHIBIT P13TRUE COPY OF THE ORDER DATED30.04.2007 ISSUED BY THE INCOME TAXOFFICER. EXHIBIT P14TRUE COPY OF REVISION PETITION DATED27.09.2007 FILED UNDER SECTION 264 OFTHE I.T. ACT. EXHIBIT P15 TRUE COPY OF THE ORDER DATED21.04.2008 PASSED IN REVISION BY THE 1ST RESPONDENT.TRUE COPY OF THE NOTICE DATED27.03.2008. EXHIBIT P16 RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE