AVARA HAJI vs. THE INCOME TAX OFFICER

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WP(C)/14204/2012HC KeralaKLHC01056284201218 June 20126 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the ITAT's order declining to condone the delay of 1270 days was correct and sustainable. The Court reasoned that the petitioner had previously approached the High Court under Article 226 of the Constitution by filing WP(C) No. 16414/2010, challenging a demand notice. This writ petition was dismissed on merits on July 12, 2010 (Ext.P5). The High Court noted that the petitioner had approached the Court without availing the statutory remedy and that the dismissal of the writ petition on merits did not reserve any right for the petitioner to subsequently approach the statutory authority (ITAT) for availing a statutory remedy. Therefore, any proceeding filed before the ITAT after the High Court's dismissal of the writ petition was not liable to be acted upon. The ITAT had rightly dismissed the petition to condone the delay. No interference was warranted, and the writ petition was dismissed.

What were the facts?

The petitioner, Avara Haji, filed a writ petition challenging an order of the Income-Tax Appellate Tribunal (ITAT) dated March 29, 2012 (Ext.P6). This order declined to condone a delay of 1270 days in filing an appeal before the ITAT. The petitioner sought to set aside the ITAT's order and have the appeal considered on merits. The petitioner had previously approached the High Court by filing WP(C) No. 16414/2010, challenging a demand notice (Ext.P2) for Rs. 3,51,794/- for assessment year 1999-2000 and Rs. 3,855/- for assessment year 2005-06. The High Court had dismissed that writ petition on merits on July 12, 2010 (Ext.P5), observing that the petitioner had not availed any legal procedure to challenge the fixation of liability after a statutory appeal was disposed of on December 21, 2006.

What were the issues?

1. Whether the Income-Tax Appellate Tribunal's order (Ext.P6) declining to condone a delay of 1270 days in filing an appeal is correct and sustainable in law? Assessee's Contention: The petitioner argues that the ITAT's order declining to condone the delay is incorrect and unsustainable, and that the matter should be considered on its merits. The petitioner seeks to set aside the ITAT's order and direct the Tribunal to consider the appeal on merits. Revenue's Contention: The revenue, represented by the Standing Counsel, appeared before the Court. The judgment does not explicitly record the revenue's specific arguments regarding the delay condonation, but it notes that the Standing Counsel was heard.

AI-generated summary — verify with the full judgment below

Heard together (3 matters)

WP(C).No. 14204 of 2012
WP(C) 7108/2005
WP(C)16414/2010

Read from the judgment's own cause title. This page is filed under one of them.

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 18TH DAY OF JUNE 2012/28ND JYAISHTA 1934 WP(C).No. 14204 of 2012 (A) --------------------------- PETITIONER(S): ------------- AVARA HAJI,, AGED 65 YEARS KATTUKANDAN HOUSE,KULIKKILIYAD.P.O,KOTTAPPURAM PALAKKAD DISTRICT. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT(S): -------------- THE INCOME TAX OFFICER, WARD NO.2, PALAKKAD-678001. BY SRI.JOSE JOSEPH, SC FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 14204/2012 APPENDIX PETITIONER(S) EXHIBITS EXT-P1 TRUE COPY OF THE WP(C) 7108/2005 EXT-P2 TRUE COPY OF APPEAL MEMORANDUM WITH DELAY PETITION EXT-P3 TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 23.02.2010 EXT-P4 TRUE COPY OF THE WP(C)16414/2010 EXT-P5 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 12.07.2010 EXT-P6 TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN INCOME TAX APPELLATE TRIBUNAL IN I.T.A.483/2009 RESPONDENTS' EXHIBITS NIL // TRUE COPY // P.A. TO JUDGE SD P.R.RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c) No. 14204 OF 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June , 2012

JUDGMENT The issue involved in this writ petition is, whether Ext.P6 order passed by the Income-Tax Appellate Tribunal in I.T.A.No.483/2009 on 29/03/2012 declining to condone the delay of 1270 days is correct or sustainable ?

2.

The petitioner seeks to set aside the said order and to direct the Tribunal to consider the matter on merits.

3.

Heard the learned Standing Counsel appearing on behalf of the respondent as well.

4.

Going by the materials on record, it is seen that the petitioner had earlier approached this Court by filing W.P.(C) No.16414/2010, wherein the challenge was in respect of the correctness and sustainability of Ext.P2 notice demanding a sum of RS. 3,51,794/- for the assessment year 1999-2000 and Rs.3,855/- in respect of the assessment year 2005-06. After considering the merits, this Court observed that, there was no case for the petitioner that the petitioner had challenged the fixation of the liability after the disposal of the statutory appeal on 21/12/2006 by resorting to any procedure known to law and this being the position, the challenge raised against Ext.P2 demand notice was held as not liable to be entertained. It was accordingly, that the writ petition was dismissed on merits.

5.

The pleadings and proceedings reveal that the petitioner approached the Tribunal by filing a second appeal along with a petition to condone the delay of 1270 days, after suffering the judgment by way of Ext.P5. Obviously, the petitioner approached this Court without availing the statutory remedy, seeking for interference on merits. It was after considering the merits involved, that the decision was rendered, declining interference and dismissing the writ petition. After the dismissal of the writ petition as above, it was never open for the petitioner to have approached the Tribunal i.e. the statutory authority for availing any statutory remedy, he having already chosen to invoke the discretionary jurisdiction of this Court (instead of the statutory remedy) under Article 226 of the Constitution. No right to invoke the statutory remedy was reserved in Ext.P5, while dismissing the writ petition. In the said circumstances, no proceeding filed before the Tribunal was liable to be acted upon and the Tribunal has rightly dismissed the petition to condone the delay as per Ext.P6. No interference is warranted and the writ petition is dismissed accordingly. P.R.RAMACHANDRA MENON JUDGE

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