A.M.ABDUL RAZAK, vs. THE INCOME TAX OFFICER,

PDF · subscribers
WP(C)/18370/2019HC KeralaKLHC01046979201905 July 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI5 pages
AI SummaryPartly Allowed

What did the High Court hold?

The High Court, while acknowledging the objection raised by the respondent regarding the availability of a statutory appeal, recognized the potential for recovery steps to be taken pursuant to Ext.P4 demand notice. To protect the petitioner's rights and enable them to file an appeal and raise all grounds effectively, the Court disposed of the writ petition with specific directions. The petitioner was granted liberty to file an appeal within four weeks from the date of the order, along with a stay petition seeking a stay of the execution of Ext.P3 order. Furthermore, the respondents were directed not to effect recovery pursuant to Exts.P3 and P4 for eight weeks from the date of the order, or until an order was made and communicated to the petitioner on the stay petition. The Court did not decide the merits of the petitioner's claim regarding the submission of books and auditor's report.

What were the facts?

The petitioner, A.M. Abdul Razak, a hill produce dealer, filed a writ petition challenging Ext.P3 order and Ext.P4 demand. The issue pertains to Section 271B of the Income Tax Act, 1961. The petitioner argued that the order was passed without considering that the books of account along with the auditor's report had already been submitted. The respondent, the Income Tax Officer, contended that this was a verifiable circumstance that the appellate authority could examine and that the petitioner had not made out a case for invoking writ jurisdiction. The respondent insisted that the petitioner should pursue the statutory remedy of appeal.

What were the issues?

1. Whether the High Court should exercise its writ jurisdiction to set aside Ext.P3 order and Ext.P4 demand, despite the availability of a statutory remedy of appeal, based on the petitioner's contention that the order was passed without considering the submission of books of account and auditor's report, which is a jurisdictional fact. Assessee's Contention: The petitioner argued that the omission to consider the submitted books of account and auditor's report constituted a jurisdictional error, justifying the exercise of writ jurisdiction. The petitioner relied on the principle that courts can examine jurisdictional facts under their power of judicial review. Revenue's Contention: The respondent argued that the issue of whether the books and report were submitted and considered was a pure and simple verifiable circumstance that the appellate authority could address. The respondent contended that no extraordinary circumstances were presented to warrant invoking the writ jurisdiction of the High Court and that the petitioner should be relegated to the statutory appeal process.

Which sections of the Income-tax Act were involved?

Section 271B

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 S.V.BHATTI FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941 WP(C).No.18370 of 2019 PETITIONER: A.M.ABDUL RAZAK, AGED 58 YEARS SON OF MEERANNAN, V.P.V-448, HILL PRODUCE DEALER, K.K.ROAD, VANDIPERIYAR-685533, IDUKKI DISTRICT. BY ADVS. SRI.S.EASWARAN SMT.SOUMYA JAMES SRI.M.A.AUGUSTINE SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.P.SREEKUMAR (THOTTAKKATTUKARA) RESPONDENT: THE INCOME TAX OFFICER, OFFICE OF THE INCOME TAX OFFICER, WARD-I, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM-686001. SC SRI JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18370 of 2019 -2-

JUDGMENT Heard Sri.S.Easwaran, the learned counsel for the petitioner and Sri. Jose Joseph, the learned Standing Counsel for the respondents.

2.

Petitioner challenges Ext.P3 order and Ext.P4 demand. The issue arises under Section 271B of the Income Tax Act, 1961. Sri.M.S.Easwaran, does not dispute the availability of statutory remedy of appeal against the order in Ext.P3, but attempts to convince this Court to exercise writ jurisdiction, by canvassing that the omission namely the books together with Auditors report was already submitted and without reference to that Ext.P3 order is made. This is a jurisdictional fact which this Court can examine under its power of judicial review and set aside the orders challenged in the writ petition.

3.

Sri.Jose Joseph, submits that this is a pure and simple verifiable circumstance which the appellate authority can undertake and there is no extraordinary circumstances made out -3- by the petitioner for invoking writ jurisdiction of this Court. He insists that the petitioner ought to be relegated to working out his grievances against Exts.P3 and P4 in a statutory appeal and all the contentions/ objections available in this behalf could be left open for consideration by the appellate authority. He prays for dismissing the writ petition. I have perused the record and noted the submission. This Court is convinced with the objection raised by the counsel appearing for respondents that Ext.P3 ought to be challenged by this appeal. Ext.P4 since is issued and there is threat of taking steps pursuant to Ext.P4 in the interregnum i.e, from today till the date of an appeal is filed and orders are considered and passed on the stay petition. Therefore with a view to protecting the rights of the petitioner and also enable the petitioner to file appeal and raise all grounds effectively, the writ petition is disposed of by this order:- (a) the petitioner is given liberty to file appeal within four weeks from today along with stay petition seeking stay of execution of -4- Ext.P3 order. (b) the respondents are directed not to effect recovery pursuant to Exts.P3 and P4 order/notice for eight weeks from today or till the order is made and communicated to the petitioner. S.V.BHATTI JUDGE Ac -5-

Appendix — schedule of exhibits
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AUDIT REPORT UNDER SECTION 44AB OF THE INCOME TAX ACT, 1961 DATED 15.12.2015. EXHIBIT P2 INDIAN INCOME TAX RETURN ACKNOWLEDGEMENT DATED 15.3.2016 ISSUED BY THE RESPONDENT. EXHIBIT P3 COPY OF ORDER DATED 7.6.2019 ISSUED BY THE RESPONDENT. EXHIBIT P4 COPY OF DEMAND DATED 11.6.2019 ISSUED BY THE RESPONDENT. RESPONDENT'S/S EXHIBITS: NIL //TRUE COPY// PA TO JUDGE

More judgments on Section 271B

All 1,993 judgments and leading authorities on Section 271B →

Recent GST High Court judgments

Search GST case law →