IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 21712 of 1999(I)
1. SIMON PHILIP
... Petitioner
Vs
1. AGRL. INCOME TAX & SALES TAX OFFICER
... Respondent
For Petitioner :SRI.ANTONY DOMINIC
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
Dated :17/03/2008
O R D E R
P.R.RAMAN, J.
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O.P.NOS.21712 OF 1999 &
9983 OF 2002
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Dated this the 17th day of March, 2008
JUDGMENT
Both these original petitions are filed by the same assessee and
common issue arises and hence they are disposed of by a common
judgment. In O.P.No.21712/99 the relief sought for is to quash Exts.P5 and
P6 and also for a direction to complete the assessment for the assessment
years 1996-97 and 1997-98 at the compounding rate as per Section 13 of the
Agricultural Income Tax Act, 1991.
2. According to the petitioner, he owns a rubber plantation besides he
has 1/3 right in the family property standing in the name of his later father.
The other co-owners are his mother and brother. During the previous year
1995-96 he applied for compounding under Section 13 of the Agricultural
Income Tax Act and the Assessing Officer completed the assessment as per
Ext.P1 allowing the application. Subsequently, the lst respondent proposed
to withdraw the compounding granted under Ext.P1 on the ground that the
petitioner is not eligible for compounding in respect of an extent of 1.72
acres of land, which even according to him, is admittedly owned by him
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O.P.Nos.21712/99 & 9983/2002
along with others and since no compounding application was made by
other co-owners. That was challenged by filing O.P.No.10318/96.
Subsequently, for the year in question assessments were completed
rejecting his claim for compounding under Section 13 of the Act. In view
of the pendency of O.P.No.10318/96 he straight away approached this
Court by filing the original petition seeking to quash the assessment
orders for the two years as referred to above.
3. Similar is the case in O.P.No.9983/2002. The assessment order
in respect of which the assessment has completed is sought to be quashed
in the said original petition. It is now brought to my notice that
O.P.No.10318/96 was already disposed of by this court by judgment dated
31st August, 2005 leaving open the right of the petitioner to file his
objection. There was also a direction that the matter will be heard by the
authorities concerned and dispose of the same in accordance with law. As
such the main ground on which the original petition is filed before this
Court circumventing the statutory remedies is not now available to the
petitioner, in view of the disposal of O.P.No.10318/96 in the manner as
indicated above, without going into the merits of the contention raised.
Since the challenge made in these writ petitions is against the assessment
orders made by the Assessing Officer concerned, the petitioner has got an
efficacious or alternative remedy by filing an appeal. But since these writ
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O.P.Nos.21712/99 & 9983/2002
petitions were admitted and were pending before this Court, in view of the
pendency of the earlier O.P.No.10318/96, I think it is only proper that the
petitioner be given an opportunity to move before the Appellate Authority
challenging the orders impugned in these two original petitions. True that
because of the pendency of these matters before this court the statutory
time for filing the appeal has already expired. But it has to be noticed
that the petitioner has been bona fide prosecuting the matter by filing a
writ petition, which was entertained by this Court and granted an interim
stay also. In the circumstances, the period during which these two writ
petitions are pending will stand excluded from the period of limitation in
filing the appeal. The petitioner is given an opportunity to file appeals
within 30 days from today and if such appeals are filed, the same shall be
disposed of on merits, as expeditiously as possible, at any rate within a
period three months from the date of receipt of the appeals. The interim
stay granted by this Court will continue, till the disposal of the appeals. If,
however, no such appeals ares filed within the aforesaid period, it will be
open to the authority to proceed pursuant to the assessment orders
impugned in these original petitions.
Original Petitions are disposed of as above.
P.R.RAMAN,
Judge.
kcv.
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O.P.Nos.21712/99 & 9983/2002