VAVACHAN vs. ADDITIONAL COMMISSIONER OF INCOME TAX

WP(C)/9413/2014HC KeralaKLHC01055039201428 May 2014Bench: HONOURABLE MR.JUSTICE K.VINOD CHANDRAN4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court held that it is not appropriate to entertain a writ petition under Article 226 of the Constitution of India to quash assessment and penalty notices when an alternate appellate remedy exists and has been availed by the petitioner. The Court noted that the petitioner has an appellate remedy and claims to have filed an appeal. Therefore, the High Court disposed of the writ petition, directing the respondent (Additional Commissioner of Income Tax) to verify whether the period for filing an appeal has expired. If the petitioner has not instituted a proper appeal before the Appellate Authority, the respondent can proceed against the petitioner. The Court did not decide on the merits of the assessment or penalty notices.

What were the facts?

The petitioner, Vavachan, is challenging assessment notice (Ext.P4) and penalty notice (Ext.P5) issued by the Additional Commissioner of Income Tax. The petitioner argues that an appeal was filed against these notices, as evidenced by Ext.P6, but it has not been registered. The petitioner has not filed a stay application along with the appeal. The High Court notes that there is an alternate appellate remedy available and that the petitioner claims to have availed of it. The Court also observes that the petitioner appears aggrieved by recovery proceedings initiated based on the assessment order.

What were the issues?

1. Whether the High Court should entertain a writ petition under Article 226 of the Constitution of India to quash an assessment notice and penalty notice when an alternate appellate remedy is available and has been invoked by the petitioner? (Question of law) Assessee's Contention: The petitioner contends that an appeal was filed against the notices, but it has not been registered, implying a procedural hurdle preventing the full utilization of the appellate remedy. Revenue's Contention: The judgment does not record any specific contentions from the revenue. However, the Court's observation implies that the revenue would have the right to proceed if a proper appeal is not instituted.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 28TH DAY OF MAY 2014/7TH JYAISHTA, 1936 WP(C).No. 9413 of 2014 (B) -------------------------------------- PETITIONER(S): ---------------------- VAVACHAN, AGED 59 YEARS, S/O.CHACKO, THURUTHIPARAMBIL HOUSE, AMBALAMEDU, ERNAKULAM. BY ADVS.SRI.V.T.RAGHUNATH SMT.C.V.RAJALAKSHMI RESPONDENT(S): ------------------------- ADDITIONAL COMMISSIONER OF INCOME TAX, ALUVA RANGE, KAP COMPLEX, RS ROAD, ALUVA, ERNAKULAM DIST, PIN-683801. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ

WP(C).No. 9413 of 2014 (B) -------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1:- COPY OF THE WILL NO.100/95 EXECUTED BY CHACKO DTD 29/11/85 P2:- COPY OF THE PURCHASE CERTIFICATE DTD 25/10/72 P3:- COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER TO THE PETITIONER DTD 22/3/2013 P4:- COPY OF THE NOTICE ISSUED BY THE RESPONDENT TO THE PETITIONER DTD 3/3/2014 P5:- COPY OF THE NOTICE ISSUED BY THE RESPONDENT TO THE PETITIONER DTD 3/3/2014 P6:- COPY OF THE APPEAL MEMO FILED BY THE PETITIONER DTD 18/3/2014 RESPONDENT(S)' EXHIBITS --------------------------------------- NIL. / TRUE COPY / P.S. TO JUDGE PJ

K.VINOD CHANDRAN, J - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 9413 of 2014 - - - - - - - - - - - - - - - - Dated 28th May, 2014 - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT The petitioner is aggrieved by Ext.P4 assessment notice and Ext.P5 penalty notice and he seeks quashing of the same. It is trite that no notice can be quashed by this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India. With respect to the assessment order, necessarily the petitioner would have to avail of appellate remedies. The petitioner contends that an appeal was filed as evidenced by Ext.P6. However, the same has not been registered, is the argument. Petitioner does not have a case that he has filed a stay application along with the appeal. 2. In the circumstances of there being an alternate remedy and the petitioner is stated to have availed of such remedy, it may not be

WP(C).9413/14 2 proper for this Court to entertain the above writ petition. The petitioner seems to be aggrieved by the recovery proceedings initiated on the basis of the assessment order. The 1st respondent shall verify as to whether the period of appeal is over and then only proceed against the petitioner if he has not instituted a proper appeal before the Appellate Authority. Writ petition disposed of. Sd/- K.VINOD CHANDRAN, Judge Mrcs

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