IT : No writ petition can be allowed to issue writ of mandamus to implement previous decision of High Court
■■■
[2013] 40 taxmann.com 77 (Kerala)
HIGH COURT OF KERALA
Alappat Jewels
v.
Assistant Commissioner of Income-tax*
P.R. RAMACHANDRA MENON, J.
W.P. (C) NO. 3947 OF 2013 (P)
MARCH 13, 2013
Section 148 of the Income-tax Act, 1961, read with article 226 of the Constitution of India - Income escaping assessment - Issue of Notice [Writ petition] - Assessment year 2006-07 - High Court vide decision in Alappat Jewels v. Asstt. CIT [2013] 350 ITR 471/215 Taxman 680/30 taxmann.com 212 (Ker.) dismissed appeal of assessee with observation that objection preferred by assessee against issue of notice under section 148 must be necessarily considered and reasons must be given - Assessee filed instant writ petition for issuance of a writ of mandamus to implement said direction of High Court - Whether no writ of mandamus can be issued to implement decision in said case - Held, yes [Para 7] [In favour of revenue]
CASES REFERRED TO
Alappat Jewels v. Asstt. CIT [2013] 350 ITR 471/215 Taxman 680/30 taxmann.com 212 (Ker.) (para 1), GKN Driveshafts (India) Ltd. v. ITO[2003] 259 ITR 19/[2002] 125 Taxman 963 (SC) (para 2) and CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561/187 Taxman 312 (SC) (para 3).
Anil D. Nair, J.R. Prem Navaz and Smt. Nivedita A. Kamath for the Petitioner. P.K.R Menon and Jose Joseph for the Respondent.
JUDGMENT
1. The petitioner has approached this court, seeking for issuance of a writ of mandamus directing the respondents to comply with the directions in the judgment reported in Alappat Jewels v. Asstt. CIT [2013] 350 ITR 471/215 Taxman 680/30 taxmann.com 212 (Ker.). The petitioner also seeks for a stay of exhibit P10 notice pending disposal of the writ petition.
2. The case of the petitioner is that the assessment in respect of the year 2006-07 under section 143(3) of the Income-tax Act, 1961, finalized as per exhibit P5, was sought to be reopened under section 147, referring to escaped assessment and exhibit P6 notice under section 148 was issued in this regard. The petitioner sought for reasons to be given in writing, vide exhibit P7, in tune with the law declared by the apex court in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19/[2002] 125 Taxman 963 (SC). This, was furnished, vide exhibit P8, dated April 25, 2012.
3. In the meanwhile, the petitioner approached this court by way of W. P. (C.) No. 13397 of 2012, challenging the course and proceedings, stating that the proceedings were barred by limitation, that there was no fault or lapse or non-disclosure of any material facts enabling the respondents to reopen the assessment beyond the stipulated period of four years and the necessity to pass a "speaking order", as sought for, vide exhibit P9, dated May 4, 2012. It was also contended by the petitioner, that it was only by virtue of a "change in opinion", that the assessment was sought to be reopened, which was not a ground in view of the law declared by the apex court in CIT v. Kelvinator of India Ltd. [2010] 320 ITR 561/187 Taxman 312. It was further contended by the petitioner that the respondents were not justified in proceeding with the reopening of the assessment, on the basis of estimate procured from the petitioner in the course of survey conducted in the premises under section 133A and that the sworn statement given by the managing director of the firm at the time of survey on February 1, 2006, offering additional income of 1.5 crores for the assessment year 2006-07 was subsequently retracted and that the same was an immaterial piece of evidence to be reckoned for the purpose of assessment, in view of the settled position of law.
4. According to the respondents, the above investment was confirmed by the petitioner as per the letter dated February 3, 2006, as well, however, requesting that the same should not result in "complication in sales tax assessment" already finalized. It was contended from the part of the Revenue, that the verification of the books of account of the petitioner was only in respect of the entries already made ; while the unaccounted investment naturally would not find a place in the books of account and as such, absolutely "no opinion was formed" by the concerned officer while passing exhibit P5 assessment order, more so when no reference was made to the survey and the disclosure effected on February 1, 2006. After hearing both the sides, this court held as per judgment dated August 22, 2012 in W. P. (C.) 13397 of 2012, whether there was any lapse/failure on the part of the assessee in having effected "full and true disclosure" of the particulars necessary for assessment for the year 2006-07 was a matter, to be looked into and decided with reference to the materials on record, including the statement dated February 1, 2006, and the subsequent letter dated February 3, 2006, in confirmation. This court observed that, no objection was filed by the petitioner to the notice and as such, no interference was warranted at that stage. Accordingly, observing that no merit was being expressed, the petitioner was permitted to file objection, if any, within one month, simultaneously directing the concerned respondent to finalize the matter in accordance with law, as specified.
5. The petitioner sought to challenge the said verdict by filing an appeal, mainly contending that a preliminary finding had to be rendered by passing a "speaking order", in the light of the law declared by the apex court in GKN Driveshafts (India) Ltd. case (supra) before entering into the merits of the case. After hearing both the sides and after referring to the relevant provisions of law and the binding judicial precedents, interference was declined and the appeal was dismissed as per the decision in Alappat Jewels (supra), observing that, the objections preferred by the petitioner-appellant must be necessarily considered and reasons must be given. The petitioner is now before this court for issuance of a writ of mandamus to implement the said direction, simultaneously seeking to stay exhibit P10 notice dated January 29, 2013, asking the petitioner to appear on February 7, 2013, with documents.
6. Mr. P. K. Ravidranadha Menon, the learned senior standing counsel for Government of India (Taxes), Kerala, submits that the writ petition itself is not maintainable and that no writ will lie to implement a verdict already passed by this court ; that too by a Division Bench. It is also pointed out that, the idea and understanding of the petitioner is quite wrong and misconceived. A specific observation was made by the Division Bench in the last paragraph of the judgment (cited supra), whereby it was held that the Bench did not deem it necessary to direct the respondents to pass separate order in the manner as desired by the petitioner-appellant before passing the verdict on the merits, It is also pointed out that, the assessment had to be finalized on the merits as well, on or before March 31, 2013, lest, it should get time barred and the attempt of the petitioner is only to get the proceedings stalled some how or other.
7. After hearing both the sides, this court finds that the grievance of the petitioner against exhibit P10 notice, asking the petitioner to appear on the specific date with the documents/clarifications for finalizing the assessment is not liable to be entertained by this court, in view of the sequence of events as mentioned hereinbefore. Exhibit P10, as such, is not sought to be set aside in the writ petition and there is no prayer in this regard while the prayer is only to stay exhibit P10 pending writ petition. The main relief sought for in the writ petition is to issue a writ of mandamus to implement the decision in Alappat Jewels (supra). This court holds that no such writ can be issued. There is absolutely no merit or bona fides in the writ petition. No interference is called for. The writ petition is dismissed accordingly.
Regards
Prarthana Jalan
__._,_.___
No comments:
Post a Comment