IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17897 of 2009(F)
1. ANTO NITTO, S/O. AND LEGAL HEIR OF
... Petitioner
2. ARUN COLUMBUS, S/O. ANTONITTO,
3. ANUPAMA JOHN, D/O. ANTONITTO,
Vs
1. THE CHIEF COMMISSIONER OF INCOME TAX,
... Respondent
2. THE COMMISSIONER OF INCOME TAX,
3. THE CENTRAL BOARD OF DIRECT TAXES,
4. THE TAX RECOVERY OFFICER,
For Petitioner :SRI.RAJU JOSEPH
For Respondent :SRI.JOSE JOSEPH, SC, FOR INCOME TAX
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :22/10/2010
O R D E R
P.R. RAMACHANDRA MENON J.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
W.P (C) No. 17897 OF 2009
~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dated, this the 22nd day of October, 2010
JUDGMENT
This Writ Petition was heard by this Court on 30.07.2010 and
pursuant to the I.A. No. 14611 of 2010, the matter was taken up and finally
heard today; including on the relief sought for in the I.A..
2. The sequence of events as narrated in the Writ Petition shows
that the petitioners are aggrieved of the steps pursued by the respondents
for realization of the income tax arrears of M/s Ocean Fisheries and late
K.J. Columbus for the assessment years 1974 -’75 to 1978 – ’79, 1980 – ’81
and 1982 – ’83 and also in respect of interest under Section 220 (2) of the
said Act. The first petitioner was a partner of firm M/s Ocean Fisheries and
his deceased father K.J. Columbus was the managing partner of the firm.
There was also another partner by name Joseph Joppan. In the course of
the steps taken by the department for realization of the amount stated as
due, the petitioners were served with a notice dated 06.01.2009, when they
approached this Court by filing W.P.(C) No. 3319 of 2009, challenging the
same. After considering the merits involved, the said Writ Petition was
dismissed on 30.02.2009, however holding that the said judgment would
W.P. (C) No. 17897 of 2009
2
not stand in the way of the authorities concerned, to take a decision on the
representation dated 06.10.2008 preferred by the petitioner under Section
119 of the I.T. Act ( Ext. P5 therein, which is marked as Ext. P3 in the
present Writ Petition). Against the said verdict, Writ Appeal No. 275 of
2009 was preferred by the petitioners, wherein an interim order was
passed as borne by Ext. P2, directing the petitioners to satisfy a portion of
the liability as specified therein to have the representation considered. The
said Writ Appeal was finally disposed of as per judgment dated
30.03.2009, directing the Commissioner, Income Tax, Kochi to consider
and dispose of the petition for reconciliation dated 14.09.2009 preferred by
the petitioners/appellants within two months as specified.
3. The petitioners were being repeatedly required by the concerned
authorities to satisfy the amounts, as ordered by this Court earlier. The
correctness and sustainability of the figures mentioned were sought to be
challenged by filing various representations and several communications
followed in between. The main grievance projected by the petitioners was
that, the petitioners were earlier given the benefit of ‘waiver’ of interest to
an extent of 60 % as ordered by the 3rd respondent as early as in the year
2002, which was subsequently sought to be denied, when the proceedings
were finalized thereafter. In was in the said circumstances that the
petitioners preferred yet another petition before the concerned authorities,
W.P. (C) No. 17897 of 2009
3
which culminated in denying the benefit of waiver by Ext. P9 dated
09.06.2009. The petitioners pursued the matter further and the position
was let known to them by the first respondent as per Ext. P10
communication dated 17.06.2009. It is contended that, some other
grievances were also projected from the part of the petitioners on the date
of hearing and that Ext. P10 order was passed on 17.06.2009, without
properly appreciating the facts projected in the Ext. P11 representation. It
is also stated that, since the matter has not been effectively dealt with by
the first respondent while passing Ext. P10, the grievance of the petitioners
has been projected again by filing Ext. P12, which is stated as pending
before the 3rd respondent. It is in the meanwhile, that further proceedings
were taken, notifying the sale of the property as per Ext. P1, which hence
was sought to be intercepted by filing the above Writ Petition.
4. When the matter was came up for consideration before this Court
on 26.06.2009, the sale was permitted to be proceeded with, however
making it clear that ‘confirmation of sale’ shall be subject to further orders
to be obtained from this Court. It is brought to the notice of this Court that,
since there were no bidders, the department itself bid the property for a Rs.
95.71 lakhs. The respondents have filed a statement asserting the facts
and figures with reference to the sequence of events, contending that the
attempt being made from the part of the petitioners is only to protract the
W.P. (C) No. 17897 of 2009
4
proceedings and there is absolutely no merit or bonafides in the Writ
Petition.
5. The petitioners have filed reply affidavit, followed by a rejointer
filed by the 4th respondent, producing copies of the relevant documents.
6. The learned standing counsel appearing for the respondents
submits, with reference to the prayers contained (seeking for a direction to
dispose of Exts. P11 and P2) that Ext. P11 representation has already
been considered ,passing Ext. R4 (d) order dated 26.06.2009 and that only
Ext. P12 is pending consideration before the 3rd respondent.
7. Going by the contents of the reply affidavit filed by the petitioners,
several new averments have been raised therein, particularly as to the
‘limitation’ and such other aspects; which do not find a place in the Writ
Petition. As such, this Court does not propose to go into the merits of the
said contentions in the reply affidavit, when the pleadings and prayers in
the Writ Petition stand unamended, but for examining the merits of the Writ
Petition as it stands.
8. With regard to the contents of the I.A. now filed by the petitioners
(I.A. No. 14841 of 2010), Mr. Raju Joseph, the learned senior counsel
appearing for the petitioners submits that the petitioners are ready and
willing to satisfy the entire liability for the time being, subject to the final
outcome of the relevant proceedings and seek for a direction to reconvey
W.P. (C) No. 17897 of 2009
5
the property to the petitioners.
9. The respondents have filed a ‘statement’ dated 21.10.10 in the
said I.A., stating that the property happened to be bid in favour of the
department on 30.06.09 for Rs. 95.70 lakhs, subject to the interim order
dated 26.06.2009 passed by this Court with regard to the sale. Taking note
of the fact that the sale was permitted to be proceeded, subject to further
orders with regard to the confirmation of sale, as made clear in the interim
order dated 26.06.2010, the petitioners have come forward stating that they
are ready to discharge the entire liability as on date, subject to final
outcome. On considering the grievance projected from the part of the
petitioners, this Court finds that the sale effected on 30.06.2009 could be
set aside on clearing the entire liability to the department as on date and
satisfaction of the liability as above could be subject to the final orders to
be passed by the third respondent in Ext. P12, which is stated as pending
before the said respondent.
10. In the above facts and circumstances, the 4th respondent is
directed to intimate the petitioners as to the actual liability due from the
petitioners as on date, within ‘one week’ from today, on which event, it will
be open for the petitioners to satisfy the said liability, subject to the orders
to be passed by the 3rd respondent in Ext. P12. On satisfying the liability as
above, the property shall released and reconveyed to the petitioners
W.P. (C) No. 17897 of 2009
6
forthwith at their cost and it will be open for the petitioners to deal with the
properties free from any encumbrances to the Department.
11. The third respondent is directed to consider Ext. P12 and pass
final orders thereon, in accordance with law, after giving an opportunity of
hearing to the petitioners, as expeditiously as possible, at any rate within
three months from the date of receipt of a copy of this judgment. The
petitioners shall produce a copy of this judgment along with a copy of Ext.
P12 before the third respondent for further steps in this regard.
I.A. No. 14611 of 2010
In view of the finalization of the Writ Petition as above, no separate
orders are necessary in the I.A. Hence it is closed.
P. R. RAMACHANDRA MENON, JUDGE
kmd