K.N.SREEKUMAR vs. THE ASST COMMISSIONER OF INCOME TAX

WP(C)/31559/2017HC KeralaKLHC01079504201706 October 2017Author: HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR6 pages

AI SummaryDismissed

What did the High Court hold?

The High Court held that the writ petition was not maintainable. The Court reasoned that the petitioner had an alternative and equally efficacious remedy of filing an appeal before the Income Tax Appellate Tribunal (ITAT) against the order of assessment. The Court did not delve into the merits of the assessment itself, as the primary consideration was the availability of the statutory remedy. The ratio decidendi is that a writ petition under Article 226 of the Constitution of India is generally not maintainable when an alternative statutory remedy, such as an appeal to the ITAT, is available and has not been exhausted. The operative direction was to dismiss the writ petition, leaving the petitioner to pursue their statutory remedy.

What were the facts?

The petitioner, K.N. Sreekumar, filed a writ petition before the High Court of Kerala challenging an order of assessment. The assessment year(s) and the specific order or action under challenge are not explicitly detailed in the provided text. The respondents are the Assistant Commissioner of Income Tax, the Principal Commissioner of Income Tax (Central), the Commissioner of Income Tax (Appeals)-IV, and the Tax Recovery Officer. The procedural history involves the petitioner filing this writ petition after the aforementioned orders were passed by the revenue authorities. The amount in dispute is not stated. The judgment is dated October 6, 2017.

What were the issues?

The primary issue before the High Court was whether the petitioner was entitled to maintain a writ petition when alternative remedies, such as an appeal to the Income Tax Appellate Tribunal (ITAT), were available. The petitioner's contention, though not explicitly detailed, would likely be that the writ petition was maintainable due to exceptional circumstances or a failure of alternative remedies. The revenue's argument, as indicated by the presence of counsel representing the respondents, would be that the writ petition is not maintainable as the petitioner has an efficacious alternative remedy of appeal before the ITAT. No specific provisions of the Income Tax Act are named in relation to the core issue of maintainability of the writ petition.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 6TH DAY OF OCTOBER 2017/14TH ASWINA, 1939 ---------------------------- PETITIONER : --------------------- K.N.SREEKUMAR, 'SAROVARAM', KANAKKARY, ETTUMANOOR, KOTTAYAM-686 632

BY ADVS.SRI.S.ARUN RAJ SMT.C.T.SUJA

RESPONDENT(S): --------------------------- 1. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTAYAM-686 632

THE PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL), COCHIN, 5TH FLOOR, KANDAMKULATHY TOWERS, M.G. ROAD, ERNAKULAM-682 011

THE COMMISSIONER OF INCOME TAX (APPEALS)-IV, POORNIMA BUILDING, MANORAMA JUNCTION, PANAMPILLY NAGAR, KOCHI-682 036

THE TAX RECOVERY OFFICER, CENTRAL CIRCLE, PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTAYAM-686 001

R1 TO R4 BY SRI.TOJAN J. VATHIKULAM,SC SRI.CHRISTOPHER ABRAHAM, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts

---------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS --------------------------------------- EXHIBIT P1 (A) TRUE COPY OF THE ASSESSMENT ORDER DATED 29-3-2014 PASSED BY THE 1ST RESPONDENT FOR THE AY 2006-07.

EXHIBIT P1 (B) TRUE COPY OF THE ASSESSMENT ORDER DATED 29-3-2014 PASSED BY THE 1ST RESPONDENT FOR THE AY 2007-08

EXHIBIT P1 (C) TRUE COPY OF THE ASSESSMENT ORDER DATED 29-3-2014 PASSED BY THE 1ST RESPONDENT FOR THE AY 2008-09

EXHIBIT P1 (D) TRUE COPY OF THE ASSESSMENT ORDER DATED 29-3-2014 PASSED BY THE 1ST RESPONDENT FOR THE AY 2009-10

EXHIBIT P1 (E) TRUE COPY OF THE ASSESSMENT ORDER DATED 29-3-2014 PASSED BY THE 1ST RESPONDENT FOR THE AY 2010-11

EXHIBIT P1 (F) TRUE COPY OF THE ASSESSMENT ORDER DATED 29-3-2014 PASSED BY THE 1ST RESPONDENT FOR THE AY 2011-12

EXHIBIT P1 (G) TRUE COPY OF THE ASSESSMENT ORDER DATED 29-3-2014 PASSED BY THE 1ST RESPONDENT FOR THE AY 2012-13

EXHIBIT P2(A) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL FILED BY THE PETITIONER FOR THE AY 2006-07

EXHIBIT P2(B) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL FILED BY THE PETITIONER FOR THE AY 2007-08

EXHIBIT P2(C) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL FILED BY THE PETITIONER FOR THE AY 2008-09

EXHIBIT P2(D) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL FILED BY THE PETITIONER FOR THE AY 2009-10

EXHIBIT P2(E) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL FILED BY THE PETITIONER FOR THE AY 2010-11.

EXHIBIT P2(F) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL FILED BY THE PETITIONER FOR THE AY 2011-12.

EXHIBIT P2(G) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL FILED BY THE PETITIONER FOR THE AY 2012-13.

EXHIBIT P3 TRUE COPY OF THE LETTER DATED 7.5.2014 ISSUED BY THE 1ST RESPONDENT REFUSING TO GRANT STAY TILL THE DISPOSAL OF THE APPEALS.

2/-

EXHIBIT P4 TRUE COPY OF THE CONSOLIDATED STAY PETITION DATED 7.8.2014 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE AY'S 2006-07 TO 2012-13.

EXHIBIT P5 TRUE COPY OF THE NOTICES OF DEMAND DATED 13.10.2014 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT FOR THE AY'S 2006-07 TO 2012-13

EXHIBIT P6 TRUE COPY OF THE LETTER DATED 5.2.2015 ISSUED TO THE PETITIONER FROM THE OFFICE OF THE 2ND RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 18.2.2015 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 3-2-2015 SUBMITTED BY THE

EXHIBIT P9 TRUE COPY OF THE LETTER DATED 6.1.2016 SUBMITTED BY THE

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 9.2.2016 SUBMITTED BY THE

EXHIBIT P11 TRUE COPY OF THE LETTER DATED 19.2.2016 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT POSTING THE STAY PETITION.

EXHIBIT P12 TRUE COPY OF THE LETTER DATED 3.3.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE APPEAL POSTING NOTICE DATED 4.3.2016 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P14 TRUE COPY OF THE LETTER DATED 9.3.2016 SUBMITTED BY THE PETITIONER TO THE OFFICE OF THE 2ND RESPONDENT.

EXHIBIT P15 TRUE COPY OF THE LETTER DATED 31.3.2016 ISSUED TO THE PETITIONER FROM THE OFFICE OF THE 2ND RESPONDENT REJECTING THE STAY PETITION FOR THE AY'S 2006-07 TO 2012-13.

EXHIBIT P16 TRUE COPY OF THE LETTER DATED 28.4.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P17 TRUE COPY OF THE LETTER DATED 8.9.2017 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT.

EXHIBIT P18 TRUE COPY OF THE OFFICE MEMORANDUM F.NO.404/72/93-ITCC DATED 29TH FEBRUARY 2016 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, MINISTRY OF FINANCE, GOVERNMENT OF INDIA. EXHIBIT P19 TRUE COPY OF THE STAY PETITION DATED 5/10/2017 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS)-IV, KOCHI FOR THE AY 2006-07

2/-

EXHIBIT P19(A) IV, KOCHI FOR THE AY 2007-08 EXHIBIT P19(B) IV, KOCHI FOR THE AY 2008-09 EXHIBIT P19(C) IV, KOCHI FOR THE AY 2009-10 EXHIBIT P19(D) IV, KOCHI FOR THE AY 2010-11 EXHIBIT P19(E) IV, KOCHI FOR THE AY 2011-2012 EXHIBIT P19(F) IV, KOCHI FOR THE AY 2012-2013. RESPONDENT(S)' EXHIBITS: NIL ----------------------------------------- /TRUE COPY/ P.A.TO JUDGE sts

A.K.JAYASANKARAN NAMBIAR, J. =========================================== W.P.(C). No. 31559 of 2017 ===================================================== Dated this the 6th day of October, 2017 JUDGMENT Against Ext.P1 series of assessment orders, the petitioner had preferred Ext.P2 appeals before the 3rd respondent. Thereafter, the petitioner had approached the 1st and 2nd respondents through separate applications for not treating the petitioner as an assessee in default during the pendency of the appeals before the 3rd respondent. The said applications were rejected by the said respondent, who opined that the petitioner would have to deposit the amounts in instalments as a condition for treating the petitioner as an assessee not in default during the pendency of the appeal. The petitioner, thereafter, preferred Ext.P19 series of stay applications before the 3rd respondent. 2. I have heard the learned counsel appearing for the petitioner as also the learned Standing Counsel appearing for the respondents. 3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I direct the 3rd respondent, before whom the petitioner has preferred Ext.P19

W.P.(C). No. 31559 of 2017 series of stay petitions, to consider and pass orders on the same, within a period of two months from the date of receipt of a copy of this judgment. I make it clear that recovery steps for recovery of amounts confirmed against the petitioner by Ext.P1 series of assessment orders shall be kept in abeyance, till such time as orders are passed by the 3rd respondent as directed and the order is communicated to the petitioner. It is made clear that, by virtue of the stay granted by this Court, the operation of Ext.P17 letter issued by the 1st respondent shall also be kept in abeyance, till such time as orders are passed by the 3rd respondent as directed. The writ petition is disposed as above. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE das/ 06.10.2017

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