High Court Kerala High Court

K.P.Abdul Majeed vs Asst.Commissioner on 6 July, 2010

Kerala High Court
K.P.Abdul Majeed vs Asst.Commissioner on 6 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 970 of 2010()


1. K.P.ABDUL MAJEED,"SONA",KOTTARAM ROAD,
                      ...  Petitioner

                        Vs



1. ASST.COMMISSIONER,CIRCLE 1(1)CALICUT.
                       ...       Respondent

2. COMMISSIONER OF INCOME TAX,CALICUT.

                For Petitioner  :SRI.P.RAGHUNATH

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :06/07/2010

 O R D E R
             J.Chelameswar, C.J. & P.N.Ravindran, J.
                  ------------------------------------------
                        W.A. No.970 of 2010
                  ------------------------------------------
                  Dated this the 6th day of July, 2010

                             JUDGMENT

J.Chelameswar, C.J.

Aggrieved by the judgment dated 3rd March, 2010 in

W.P.(C) No.3334 of 2010 the unsuccessful petitioner therein

preferred the instant writ appeal.

2. The appellant herein received a notice under Section

148 of the Income Tax Act dated 5.2.2009. The substance of the

notice is that the assessing authority is of the opinion that some

income of the appellant escaped assessment during the assessment

year 2004-05 and therefore called upon the appellant to explain

certain transactions specified in the notice and also to file an

appropriate return.

3. It can be seen from the scheme of the Income Tax Act

that under Section 147 of the Act the assessing officer is authorised

to make an assessment or re-assessment, as the case may be, if the

W.A.No.970 of 2010

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assessing officer has reason to believe that any income

chargeable to tax had escaped assessment subject to the various

conditions and limitations specified in Section 147, details of

which may not be necessary in the instant case. Section 148 of

the Act stipulates that before the power under Section 147 of the

Act is resorted to, the assessee is required to be put on notice as

to the intention of the assessing authority to resort to the power

under Section 147 of the Income Tax Act.

4. Pursuant to the notice dated 5.2.2009, an

assessment under Section 147 of the Income Tax Act admittedly

came to be passed by the assessing authority on 30th December,

2009 (Ext.P12). It is in this background that the writ petition

came to be filed with the prayers as follows:

“It is therefore prayed that this Hon’ble Court

may be pleased to call for the records leading to the

issue of Ext.P1 notice u/s 148 of the Act as also

Ext.P12 assessment order for the year 2004-05, hear

arguments on behalf of the petitioners and:

A. Issue a writ of certiorari quashing the

original of Ext.P1 notice u/s 148 of the IT Act.

W.A.No.970 of 2010

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B. Issue a writ of certiorari quashing the

original of Ext.P12 assessment order for 2004-05.

C. Grant such other reliefs that the Petitioners

may pray for and this Hon’ble Court may deem fit to

grant;

D. Award costs of the petitioners.”

5. It can be seen from the above extracted prayers in

the writ petition that the appellant herein challenges both the

notice issued under Section 148 of the Income Tax Act as well

as the assessment order passed under Section 147 of the Act

pursuant to the abovementioned notice.

6. A learned Judge of this Court by the judgment

under appeal dismissed the writ petition on the ground that the

assessment order (Ext.P12) is an appealable order under the

provisions of the Income Tax Act.

7. Sri.P.Raghunath, learned counsel for the appellant,

however, argued that though Ext.P12 order is an appealable

order, the notice issued under Section 148 of the Act (Ext.P1) is

not an appealable proceeding and therefore the learned Judge

W.A.No.970 of 2010

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fell into error in rejecting the writ petition on the ground that

there was an effective alternative remedy available to the

appellant.

8. We regret our inability to accept the submission

made by the learned counsel for the appellant. No doubt, as

contended by the learned counsel for the appellant, Ext.P1

notice under Section 148 of the Income Tax Act is not an

appealable proceeding. But such a proceeding culminated in an

assessment order (Ext.P12). The objection of the appellant

appears to be that the whole exercise under Section 147 of the

Income Tax Act is permissible only if the assessing authority

has reasons to believe to proceed under Section 147 and such

belief must be a rational belief which is capable of being

ascertained from the content of the notice. In the instant case

the notice does not disclose any such material which could have

formed the basis for a reasonable belief of escapement of

income from the assessment in the mind of the assessing

authority.

W.A.No.970 of 2010

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9. We are of the opinion that an examination of the

contents of the notice under Section 148 of the Act at this stage

after the assessment under Section 147 of the Act is completed

is not to be entertained in a proceeding under Article 226 of the

Constitution of India. It is a different matter if the appellant

had approached this Court immediately after the receipt of the

notice under Section 148 of the Act, but that is not the case on

hand. In the circumstances, we are of the opinion that the

learned Judge was justified in rejecting the writ petition on the

ground that a statutory appellate remedy is available to the

appellant. We see no reason to take a different view. Writ

appeal is therefore dismissed at the admission stage.

After the order is dictated, learned counsel for the

appellant submitted that in view of the order passed, the

appellant may be given liberty to prefer the statutory appeal and

the respondent may be directed to entertain the appeal as

otherwise the appeal would be rejected as time barred. In view

of the pendency of the proceedings in this Court, we deem it

W.A.No.970 of 2010

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appropriate to grant the liberty as sought for by the appellant and

direct the respondent to entertain the appeal against Ext.P12

order if presented before the appropriate appellate authority

within a period of three weeks from today and pass appropriate

orders on such appeal in accordance with law.

J.Chelameswar,
Chief Justice

P.N.Ravindran,
Judge
vns