P.V.THOMAS vs. THE COMMISSIONER OF INCOME TAX (APPEALS)

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WP(C)/39333/2018HC KeralaKLHC01091145201826 February 2019Author: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU5 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that the Writ Petition involved disputed questions of fact concerning whether the petitioner's authorized representative had conceded to the addition and whether this concession was nullified by the petitioner's subsequent assertion to the contrary. The Court found that the relief sought by the petitioner could be granted by the Income Tax Appellate Tribunal, making the alternative remedy efficacious. Consequently, the High Court, without delving into the merits of the case, closed the Writ Petition, allowing the petitioner to approach the Appellate Tribunal. The Court directed that the period spent by the petitioner before the High Court would be excluded for limitation purposes by the Tribunal, and coercive steps would be deferred for thirty days to enable the petitioner to exhaust the appellate remedy.

What were the facts?

The petitioner, P.V. Thomas, had his income tax assessed for assessment year 2015-2016 under Section 143(3) of the Income Tax Act. The assessment was reportedly based on a concession made by his authorized representative during a hearing. The petitioner appealed this assessment, but the appellate authority (Commissioner of Income Tax (Appeals)) upheld the assessment, stating that since a concession was made, there was no room for adjudication. Aggrieved by this order, the petitioner filed a Writ Petition before the High Court of Kerala.

What were the issues?

1. Whether the High Court should entertain a Writ Petition under Article 226 of the Constitution of India when the petitioner has an alternative statutory remedy available, specifically an appeal to the Income Tax Appellate Tribunal under Section 253 of the Income Tax Act, given the disputed questions of fact involved. Assessee's Contentions: The petitioner argued that the alleged concession was immediately denied, as evidenced by Ext.P3 communication to the assessing authority. He contended that the appellate authority failed to consider this denial. The petitioner also asserted that the scope of Article 226 is broad and that the High Court should not deny redressal if the case warrants urgent attention and can be demonstrated as such. Revenue's Contentions: The respondent revenue contended that the Writ Petition involves a purely disputed question of fact: whether the petitioner's authorized representative had indeed conceded to the addition proposed by the assessing authority. Therefore, the petitioner ought to have exhausted the further appellate remedy available under Section 253 of the Income Tax Act.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 253

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
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 HOSUE AYMANAM P.O., KOTTAYAM-686 015. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.) RESPONDENT/S: 1 THE COMMISSIONER OF INCOME TAX (APPEALS) OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS), PUBLIC LIBRARY BUILDING SASTRI ROAD, KOTTAYAM-686 001. 2 THE INCOME TAX OFFICER,WARD-5, KOTTAYAM PUBLIC LIBRARY BUILDING, SASTRI ROAD KOTTAYAM-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: WP(C).No. 39333 of 2018 2

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 said to have been based on the concession made by the petitioner's authorised representative, who attended the hearing. Questioning that assessment, the petitioner has filed a statutory appeal and invited the Ext.P2 order. Essentially, the appellate authority has held that as the petitioner, through his authorised representative, conceded to the assessment, there cannot be an adjudication of what has already been conceded. Further aggrieved, the petitioner has filed this Writ Petition.

2.

In response to the submissions made by the petitioner's counsel, the learned Standing Counsel has submitted that the Writ Petition involves purely a disputed question of fact: has the petitioner's authorised representative conceded to the addition proposed by the assessing authority? Therefore, the petitioner ought to have exhausted the further appellate remedy under Section

253.3.

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 from the Ext.P3. But the appellate authority has extracted only the alleged concession, but not the denial which was close on the heels, though. He has also underlined the expansion scope of Article 226 of the Constitution of India and asserted that merely because a suitor has an alternative remedy, this Court need not shut him out from having his grievance redressed. If the suitor could otherwise demonstrate before the Constitutional Court that this case needs urgent redressal, it ought to interfere in the interest of justice.

4.

Heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents.

5.

Attractive as the petitioner's submissions are, I am afraid he has travelled the statutory path half way: exhausted one appellate remedy. Then he felt shy of proceeding further. Then he turns around 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, the petitioner's authorised representative has conceded to the addition and whether that stands nullified because of the petitioner's immediate assertion to the contrary as set out in the Ext.P3. 7. I reckon whatever the relief the petitioner has sought before this Court can as well be granted by the Income Tax Appellate Tribunal. Therefore, the remedy thus available to the petitioner is efficacious, too.

8.

Under these circumstances, without adverting to the merits, I close this Writ Petition leaving it open for the petitioner to approach the Appellate Tribunal. As the petitioner has bonafide pursued the litigation till now; for limitation, the Tribunal will exclude the period the petitioner has spent before this Court. Besides, to enable the petitioner to exhaust the appellate remedy, the authorities will defer coercive steps for thirty days from now. DAMA SESHADRI NAIDU JUDGE

Appendix — schedule of exhibits
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 28.6.2017. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 6.8.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS). sd

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