THE COMMISSIONER OF INCOME TAX,TRIVANRUM vs. SRI.JOHN MATHAI

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938 ITR.No. 4 of 2008 ----------------- ITA 270/1988 OF INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH -------------- PETITIONER(S)/APPLICANT: ----------------------- THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM.

BY ADVS.SRI.P.K.R.MENON (SR.)

SRI.JOSE JOSEPH, SC RESPONDENT(S)/RESPONDENT: ------------------------- SRI.JOHN MATHAI, L/R OF LATE SRI.N.J.MATHEW, ALLEPPEY

BY ADVS. SRI.ANIL D. NAIR

SRI.R.SREEJITH

KUM.SOUMYA PRAKASH

KUM.MEKHALA M.BENNY THIS INCOME TAX REFERENCE HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PJ

THOTTATHIL B.RADHAKRISHNAN & ANU SIVARAMAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = I.T.R.No.4 of 2008 = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of September, 2016 O R D E R Thottathil B.Radhakrishnan, J. 1.This is an I.T.Reference in compliance with the directions of this Court in O.P.No.2235 of 1998. 2.We have heard the learned Senior Counsel for the Department and the learned counsel appearing for the assessee. 3.The only issue that survives for consideration on a composite reading of the two questions raised through the reference is as to whether the fact that a search was conducted on the premises of the assessee; without leading to seizure or unearthing any incriminating material against the assessee; would be a ground in law to refuse the benefits of the amnesty circulars to the assessee.

I.T.R.No.4/08 2 4.The learned Senior Counsel for the Department argued that the amnesty schemes are under circulars and are not dependent on the statutory provisions by themselves. He accordingly argued that the competent authority had also clarified through a clarificatory circular No.451 (F.No.225/86/85-IT (A-II), dated 17-02-1986 that the answer is in the negative to the question “Can immunity given by the circulars be availed of by the assessees whose premises have been searched by the tax authorities?” 5.At the outset, we may notice that in relation to subsequent year, similar issue in relation to the assesse qua the Department was remitted for consideration of the Tribunal and that has been answered in favour of the assessee. The said decision rendered by the Tribunal was in favour of the assessee; rendered through I.T.A.No.890/Coch/1991 for the assessment year 1985-86. Also, in further support of the assessee's case is another judgment in CWT v. N.C.John [(1998) 233 ITR 475] in relation to the same assessee.

I.T.R.No.4/08 3 6.For one thing, a search which has not ended in unearthing any incriminating material is essentially a statutory exercise which could not be treated to be of any consequence to mulct liability on any assessee or to deprive the said assessee of any benefit of law. If amnesty schemes are merely circulars, they have to be supplied as circulars without any discrimination as between the assessees unless on an identifiable and intelligible differentia which would make such classification. This is the doctrine that has been applied in N.C.John (supra) as well. For the aforesaid reasons, we do not find any question of law that has arisen for decision or having been erroneously decided by the Tribunal. We, therefore, answer the reference holding that the impugned order of the Tribunal stands. sd/- Thottathil B.Radhakrishnan, Judge sd/- Anu Sivaraman, Judge

sj20/9 /True Copy/ P.A. to Judge