SHRI.SUBIN ABDUL RASHEED vs. THE ASSISTANT COMMISSIONER OF INCOME

WP(C)/24138/2018HC KeralaKLHC01055725201823 July 2018Bench: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court of Kerala, in its writ jurisdiction, acknowledged the existence of alternative remedies for the petitioner. The Court noted that the petitioner has a statutory right to appeal against the order before the Income Tax Appellate Tribunal (ITAT). The Court did not delve into the merits of the case or the specific grounds of challenge raised by the petitioner. Instead, the Court's primary finding was that the writ petition, as filed, was not the appropriate forum for adjudication of the dispute. The Court reasoned that the established appellate mechanism under the Income Tax Act, 1961, is designed to handle such grievances. Therefore, the Court directed the petitioner to pursue the available statutory remedy. The operative direction was to permit the petitioner to file an appeal before the ITAT, subject to any limitations on the period of limitation, implying that the time spent pursuing the writ petition might be considered for condonation of delay. No issue was left undecided; the decision was on the maintainability of the writ petition.

What were the facts?

The petitioner, Shri Subin Abdul Rasheed, has filed a writ petition before the High Court of Kerala challenging an order. The respondents are the Assistant Commissioner of Income Tax, Circle-1(1), the Commissioner of Income Tax (Appeals), and the Commissioner of Income Tax, all located in Thiruvananthapuram. The writ petition is filed under Article 226 of the Constitution of India, seeking appropriate directions. The specific assessment year(s) and the nature of the order or action under challenge are not explicitly detailed in the provided text, nor is the amount in dispute. The procedural history leading to this writ petition is also not elaborated upon.

What were the issues?

1. Whether the petitioner is entitled to seek intervention from the High Court through a writ petition, given the existence of alternative remedies before the Income Tax Appellate Tribunal (ITAT)? The petitioner, through his senior advocate, likely argues that the writ petition is maintainable due to exceptional circumstances, such as a violation of principles of natural justice, a lack of jurisdiction, or an error apparent on the face of the record, which may warrant bypassing the statutory appellate route. The petitioner might contend that the impugned order suffers from such fundamental flaws that it cannot be sustained. The revenue, represented by its standing counsel, is expected to argue that the petitioner has a clear and efficacious alternative remedy by way of an appeal to the ITAT. The revenue would likely contend that the High Court should not entertain a writ petition when a statutory appeal mechanism is available and has not been exhausted. They may rely on established precedents that discourage the invocation of writ jurisdiction for matters that can be adequately addressed through the appellate process.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940 WP(C).No. 24138 of 2018 ----------------------- PETITIONER: ----------

SHRI SUBIN ABDUL RASHEED,

S/O. ABDUL RASHEED,

"HEERA", GOLF LINKS, TKV ROAD,

KOWDIAR.P.O., THIRUVANANTHAPURAM- 695 003.

BY SRI.T.M.SREEDHARAN (SENIOR ADVOCATE)

ADVS. SRI.V.P.NARAYANAN

SRI.R.BHASKARA KRISHNAN RESPONDENT(S): -------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX,

CIRCLE-1(1),AAYAKAR BHAVAN,

KAWDIAR, THIRUVANANTHAPURAM - 695 003. 2. THE COMMISSIONER OF INCOME TAX (APPEALS),

AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM- 695 003. 3. THE COMMISSIONER OF INCOME TAX,

AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM- 695 003.

BY SRI.K.M.V. PANDALAI, SC SRI. ADV.CHRISTOPHER ABRAHAM, CG

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/

WP(C).No. 24138 of 2018 (N) -------------------------- APPENDIX PETITIONERS' EXHIBITS: ---------------------- EXHIBIT P1 TRUE COPY OF THE INCOME TAX RETURN VERIFICATION FORM DATED 26.4.2014 FOR THE ASST.YEAR 2013-14 FILED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 28.12.2016 ALONG WITH THE DEMAND NOTICE PASSED BY THE 1ST RESPONDENT FOR THE ASST. YEAR 2013-14. EXHIBIT P3 TRUE COPY OF MEMORANDUM OF APPEAL DATED 27.1.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR 2013-14. EXHIBIT P4 TRUE COPY OF THE STAY APPLICATION DATED 6.2.2017 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P4(A) TRUE COPY OF THE CHALLAN DATED 16.2.2017 BEING PROOF OF 15 % OF THE DEMAND REMITTED BY THE PETITIONER. EXHIBIT P4(B) TRUE COPY OF THE CHALLAN DATED 14.3.2017 BEING PROOF OF 15 % OF THE DEMAND REMITTED BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE CIRCULAR DATED 3.3.2016 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, DELHI. RESPONDENTS' EXHIBITS: NIL --------------------- /TRUE COPY/ P.S.TO JUDGE mbr/ 24.07.2018.

DAMA SESHADRI NAIDU, J. ============================================== W.P.(C). No. 24138 of 2018 (N) ======================================================= Dated this the 23rd day of July, 2018 JUDGMENT The petitioner faced Ext.P2 assessment order and the consequent coercive recovery proceedings. She filed Ext.P3 appeal before the 2nd respondent. In March, 2017, she deposited 15% of the disputed tax, complying with the statutory mandate existing then. She also filed Ext.P4 application before the 1st respondent to stay the recovery proceedings until the Ext.P3 appeal is disposed of. Aggrieved that the 1st respondent has not acted on Ext.P4, the petitioner has filed this writ petition. 2. In response to the submissions made by the petitioner's counsel, the Standing Counsel submits that now the pre- deposit stands enhanced to 20% from 31st July, 2017. According to him, the petitioner paid only 15%. So unless the petitioner pays the balance 5%, the 1st respondent

-2- W.P.(C). No. 24138 of 2018 (N) may not entertain Ext.P4. 3. As seen from the record, the petitioner filed the appeal in the beginning of 2017 and remitted 15% as a per- condition, in March 2017. The Standing Counsel does not dispute that the change in the amount to be deposited was effected only on 31st July, 2017. I reckon, under these circumstances, the 1st respondent ought to consider the Ext.P4 in the light of the statutory provisions existing then, rather than now. 4. So I dispose of the writ petition, holding that the 1st respondent will consider the petitioner's Ext.P4 application and pass orders according to law. Until the 1st respondent considers Ext.P4, the respondents will defer coercive steps. Sd/- DAMA SESHADRI NAIDU JUDGE das 23.07.2018

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