MR.K.P.ABDUL MAJEED vs. ASSISTANT COMMISSIONER OF INCOME TAX

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WP(C)/3334/2010HC KeralaKLHC01045313201003 March 2010Author: HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON3 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that the submission made by the revenue regarding the availability of an alternate remedy by way of appeal is correct and sustainable. The Court relied on the dictum of the Apex Court in C.A. Abraham and Income Tax Officer, Kottayam and another (AIR 1961 SC 609), which held that the statute provides an adequate remedy by way of appeal to the Tribunal, and a party cannot be permitted to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India when such an alternative remedy exists. Consequently, the Court declined to interfere with the assessment proceedings and permitted the petitioner to pursue the statutory remedy of appeal. If an appeal is filed within three weeks from the date of the order, it shall be entertained and disposed of expeditiously. No specific issue was left undecided.

What were the facts?

The petitioner, K.P. Abdul Majeed, challenged an assessment order (Ext. P12) passed by the Assistant Commissioner of Income Tax, Circle 1(1), Calicut. The challenge was based on various legal and factual grounds, including the alleged lack of justification for the issuance of a notice under Section 148 of the Income Tax Act (Ext. P1). The respondents, the Assistant Commissioner and the Commissioner of Income Tax, Calicut, filed a statement defending the assessment order and highlighted the availability of an alternative remedy of appeal to the petitioner.

What were the issues?

1. Whether the issuance of notice under Section 148 of the Income Tax Act was justified, and if not, whether the entire assessment proceedings are vitiated (a question of law and fact). The petitioner contended that there was absolutely no justification for the issuance of the notice under Section 148 and that the entire proceedings were vitiated for several reasons detailed in the writ petition. The revenue contended that the petitioner has an adequate alternative remedy by way of appeal to the Tribunal.

Which sections of the Income-tax Act were involved?

Section 148

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 P.R.RAMACHANDRA MENON WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 3334 of 2010(N) ------------------------- PETITIONER: --------------- K.P.ABDUL MAJEED, "SONA", KOTTARAM ROAD, CALICUT. BY ADV. SRI.P.RAGHUNATH SRI.PREMJIT NAGENDRAN SMT.K.B.SUBHAGAMANI RESPONDENTS: --------------- 1. ASST.COMMISSIONER OF INCOME TAX, CIRCLE 1 (1): CALICUT. 2. COMMISSIONER OF INCOME TAX, CALICUT. BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 3334 of 2010 ......................................................................... Dated this the 3rd March, 2010

J U D G M E N T

The petitioner is challenging Ext. P12 order of assessment passed by the Income TAx authorities. The challenge is raised on many a ground, legal as well as factual.

2.

The learned Counsel for the petitioner submits that there is absolutely no justification for issuance of Ext. P1 notice under Section 148 of the Income Tax Act and that the entire proceedings are vitiated on many a reason as clearly explained in the Writ Petition.

3.

The respondents have filed a statement rebutting the averments raised in the Writ Petition and also seeking to sustain Ext. P12 order. It is also made a mention therein that the petitioner is very much having a remedy by way of appeal. This Court finds that the submission made from the part of the respondents as to the alternate remedy is correct and W.P.(C) No. 3334 of 2010 2 sustainable. More so , in view of the law declared by the Apex Court in C.A. Abraham and Income Tax Officer, Kottayam and another ( AIR 1961 SC 609) holding that the statute itself provides adequate remedy by way of appeal to the Tribunal and that the appellant could not be permitted to invoke the juri iction of the High Court under Article 226 of the Constitution of India .

4.

Following the dictum as aforesaid, interference is declined. The petitioner is permitted to pursue the remedy available under the statute, i.e. by way of appeal. If any such appeal is filed within three weeks from today, the same shall be caused to be entertained and appropriate orders shall be passed, as expeditiously as possible. The Writ Petition is disposed of as above.

P.R. RAMACHANDRA MENON, JUDGE. lk

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