Ashick Abraham v. Principal Chief Commissioner of Income-tax, Ernakulam / Principal Commissioner of Income-tax, Kottayam / Income-tax Officer, Ward (1), Alapuzha
[Citation -2020-LL-0521-14]

Citation 2020-LL-0521-14
Appellant Name Ashick Abraham
Respondent Name Principal Chief Commissioner of Income-tax, Ernakulam / Principal Commissioner of Income-tax, Kottayam / Income-tax Officer, Ward (1), Alapuzha
Court HIGH COURT OF KERALA AT ERNAKULAM
Relevant Act Income-tax
Date of Order 21/05/2020
Judgment View Judgment
Keyword Tags permanent account number • reassessment proceedings • satisfaction • transfer of case
Bot Summary: In order to lay emphasis, he refers to the provisions of Sub section of sub section 3, which specifies that no person shall be entitled to call in question the jurisdiction of an assessing officer if return under sub section of Section 139 is filed, after expiry of one month from the date on which was served with a notice under sub section Section 142 or sub section of Section 143 or after the completion of the assessment whichever is earlier. Another reason for rejection of the writ petition is non disclosure of the fact that for the assessment year 2012-13 petitioner filed a return under Section 139 and an assessment order was passed under Section 146. For adjudication of the aforementioned controversy,it would be appropriate to extract the provisions of Sub Sections 1, 2 and 3 of Section 124 and as well as sub section 1 of Section 148, the same read as under. No person shall be entitled to call in question the jurisdiction of an Assessing Officer - Where he has made a return under sub-section of section 115WD or under sub-section of section 139, after the expiry of one month from the date on which he was served with a notice under sub-section of section 142 or sub-section of section 115WE or sub-section of section 143 or after the completion of WP(C). On perusal of the aforementioned provisions, no doubt an assessee is prevented to dispute the question of jurisdiction of the assessing officer, after the expiry of one month from the date when he was served with a notice under sub section of Section 142 or sub section of Section 143, and in case such objection is raised the assessing officer shall assign reasons regarding the correctness or otherwise of the claim for referring the matter for determination under sub section before the assessment is made. The question which has arisen in the present writ petition is whether the proceedings under Section 148 ie re assessment would be taken at par with the proceedings under Section 139. On perusal of the provisions of Section 148 extracted supra, it is axiomatic that the proceedings initiated under Section 148 shall be proceedings at the stage of filing of the return under Section 139.


IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942 WP(C).No.10100 OF 2020(J) PETITIONER/S: ASHICK ABRAHAM 7C, ASSET KOTTARAM, MARADU P.O.ERNAKULAM-682 304. BY ADV. SRI.C.K.KARUNAKARAN RESPONDENT/S: 1 PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX C.R.BUILDING, I.S.PRESS ROAD, ERNAKULAM-682018. 2 PRINCIPAL COMMISSIONER OF INCOME TAX, PUBLIC LIBRARY BUILDING, LAL BAHADUR SASTHRI ROAD, KOTTAYAM-686 001. 3 INCOME TAX OFFICER, WARD (1), ARATTUKULAKKARA COMPLEX, OPP. MEDICAL COLLEGE HOSPITAL, PURAM, ALAPUZHA-688 0111. OTHER PRESENT: SRI JOSE JOSEPH , SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.05.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.10100 OF 2020(J) 2 JUDGMENT Dated this 21st day of May 2020 Petitioner, individual assessee of Income tax department and holder of Permanent Account Number (PAN) Ext.P1 was subjected to assessment before he shifted his residence to Ernakulam from Alappuzha, But his PAN card of Ernakulam was issued on December 2019. Mr. C.K.Karunakaran learned counsel appearing on behalf of petitioner submits that petitioner vide Exts.P3 and P4 addressed request to 3 rd respondent Income Tax Officer Ward 1, Alappuzha for transfer of assessment proceedings initiated under Section 148. However no action has been taken giving cause to approach this Court with prayer to issue writ of mandamus for considering such request. He further submits that distance between Ernakulam and Alappuzha is 60 Kilometeres and convenience of assessee has to be seen as Income Tax Authorities at Ernakulam would have jurisdiction to WP(C).No.10100 OF 2020(J) 3 take into consideration all aspects as would be applicable or otherwise. In support of aforementioned contention, he relies upon provisions of sub section (1) of Section 124 of Income Tax Act. 2. Issue notice before admission. Sri. Joseph Jose accepts notice on behalf of Income Tax. He opposes prayer for transfer by relying upon provisions of sub section (3) of Section 124 of Income Tax Act. In order to lay emphasis, he refers to provisions of Sub section (a) of sub section 3, which specifies that no person shall be entitled to call in question jurisdiction of assessing officer if return under sub section (1) of Section 139 is filed, after expiry of one month from date on which was served with notice under sub section (1) Section 142 or sub section (2) of Section 143 or after completion of assessment whichever is earlier. Reference was also laid to sub section 4 which empowers assessing officer to take call on jurisdiction in case assessee placed aforementioned objection,and is not satisfied with correctness of WP(C).No.10100 OF 2020(J) 4 claim. He thus submits that aforementioned prayer as sought for is not acceptable. Another reason for rejection of writ petition is non disclosure of fact that for assessment year 2012-13 petitioner filed return under Section 139 and assessment order was passed under Section 146 (b). appeal was preferred by petitioner before Commissioner of Income Tax under Section 246 where demand were sought from assessing officer pertaining to certain agriculture income. On receipt of aforementioned report, assessing officer issued re- assessment notice pertaining to assessment year 2013-14 and 2014-15 under Section 148 of Act. All these aforementioned particulars have intentionally withheld as there is complete bar under sub section (3) and sub section (4) of Section of 124 and urges this Court for dismissal of this writ petition. 3. In rebuttal, learned Counsel for petitioner draws attention of this court provisions of sub section 1 of section 148 of Income Tax Act by submitting that WP(C).No.10100 OF 2020(J) 5 proceedings under Section 148 are pari meteria to proceedings under Section 139 and submits that there would not be any impediment for 3 rd respondent to take call on request, particularly Ext . P4. 4. I have heard learned counsel for parties. 5. For adjudication of aforementioned controversy,it would be appropriate to extract provisions of Sub Sections 1, 2 and 3 of Section 124 and as well as sub section 1 of Section 148, same read as under. 124. Jurisdiction of Assessing Officers 1) Where by virtue of any direction or order issued under sub-section (1) or sub-section (2) of section 120, Assessing Officer has been vested with jurisdiction over any area, within limits of such area, he shall have jurisdiction - (a) in respect of any person carrying on business or profession, if place at which he carries on his business or profession is situate within area, or where his business or profession is carried on in more places than one, if principal place of his business or profession is situate within area, and (b) in respect of any other person residing within area. WP(C).No.10100 OF 2020(J) 6 2) Where question arises under this section as to whether Assessing Officer has jurisdiction to assess any person, question shall be determined by [Principal Director General or] Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner; or where question is one relating to areas within jurisdiction of different [Principal Directors General or] Directors General or [Principal Chief Commissioners or] Chief Commissioners or [Principal Commissioners or] Commissioners, by [Principal Directors General or] Directors General or [Principal Chief Commissioners or] Chief Commissioners or [Principal Commissioners or] Commissioners concerned or, if they are not in agreement, by Board or by such [Principal Director General or] Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal Commissioner or] Commissioner as Board may, by notification in Official Gazette, specify. (3) No person shall be entitled to call in question jurisdiction of Assessing Officer - (a) Where he has made return [under sub-section (1) of section 115WD or] under sub-section (1) of section 139, after expiry of one month from date on which he was served with notice under sub-section (1) of section 142 or [sub-section (2) of section 115WE or] sub-section (2) of section 143 or after completion of WP(C).No.10100 OF 2020(J) 7 assessment, whichever is earlier; (b) where he has made no such return, after expiry of time allowed by notice under [sub- section (2) of section 115WD or sub-section (1) of section 142 or under sub-section (1) of section 115WH or under section 148 for making of return or by notice under first proviso to section 115WF or under first proviso to section 144] to show cause why assessment should not be completed to best of judgment of Assessing Officer, whichever is earlier; (c) where action has been taken under section 132 or section 132A, after expiry of one month from date on which he was served with notice under sub- section (1) of section 153A or sub-section (2) of section 153C or after completion of assessment, whichever is earlier.] [148. Issue of notice where income has escaped assessment [(1)] Before making assessment, reassessment or recomputation under section 147, Assessing Officer shall serve on assessee notice requiring him to furnish within such period, [* * *] as may be specified in notice, return of his income or income of any other person in respect of which he is assessable under this Act during previous year corresponding to relevant assessment year, in prescribed form and verified in prescribed manner and setting forth such WP(C).No.10100 OF 2020(J) 8 other particulars as may be prescribed; and provisions of this Act shall, so far as may be, apply accordingly as if such return were return required to be furnished under section 139:] [Provided that in case- (a) where return has been furnished during period commencing on 1 st day of October, 1991 and ending on 30th day of September, 2005 in response to notice served under this section, and (b) subsequently notice has been served under sub-section (2) of section 143 after expiry of twelve months specified in proviso to sub-section (2) of section 143, as it stood immediately before amendment of said sub-section by Finance Act, 2002 (20 of 2002) but before expiry of time limit for making assessment, re-assessment or re-computation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be valid notice: Provided further that in case- (a) where return has been furnished during period commencing on 1 st day of October, 1991 and ending on 30th day of September, 2005, in response to notice served under this section, and (b) subsequently notice has been served under clause (ii) of sub-section (2) of section 143 after expiry of twelve months specified in proviso to clause WP(C).No.10100 OF 2020(J) 9 (ii) of sub-section (2) of section 143, but before expiry of time limit for making assessment, re- assessment or re-computation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be valid notice.] [Explanation. For removal of doubts, it is hereby declared that nothing contained in first proviso of second proviso shall apply to any return which has been furnished on or after 1 st day of October, 2005 in response to notice served under this section.] 6. On perusal of aforementioned provisions, no doubt assessee is prevented to dispute question of jurisdiction of assessing officer, after expiry of one month from date when he was served with notice under sub section (1) of Section 142 or sub section (2) of Section 143, and in case such objection is raised assessing officer shall assign reasons regarding correctness or otherwise of claim for referring matter for determination under sub section (2) before assessment is made. question which has arisen in present writ petition is whether proceedings under Section 148 ie re assessment would be taken at par with proceedings under Section 139. WP(C).No.10100 OF 2020(J) 10 7. on perusal of provisions of Section 148 extracted supra, it is axiomatic that proceedings initiated under Section 148 shall be proceedings at stage of filing of return under Section 139. There is no doubt that petitioner did not disclose about issuance of reassessment notice dated 30.12.2019, pertaining to assessment year 2013-14 and 2014-15. However, this aforementioned contention of Mr.Navaneeth N.Nath was attempted to be refuted by Sri.C.K.Karunakaran in view of fact that Sub Section (4) of Section 124 enjoins upon assessing authority to assign reason by recording satisfaction for reference of determination as and when any question of jurisdiction is raised. 8. It is question of fact that petitioner though shifted his residence in year 2015 from Alappuzha to Ernakulam and issuance of Pan card Ext.P1 in year 2019 is testimony of same for remaining assessment years of course in case of any dispute with income tax jurisdiction would be vested with Income Tax Authority, WP(C).No.10100 OF 2020(J) 11 Ernakulam. 9. I am of view that all these points which have been urged before this Court can be conveniently taken and addressed by authority, ie. assessing officer under sub section (4) of Section 124 of Income Tax Act 1961. For sake of reputition, assessing officer is required to record satisfaction as per provisions of sub section (2) before assessment is made. It is matter of record that request Ext.P4 is dated 04.01.2020, ie within few days of receipt of reassessment notice dated 30.12.02019 under Section 148 of Income Tax Act. 10. Having considered aforementioned provisions of Act and rival contentions, I am of view that equity can be addressed, by directing 3 rd respondent to take call on request Ext.P6 under sub section (4) of Section 124 or any other provisions of Act regarding jurisdiction of assessment or reassessment proceedings, by taking into consideration observation, herein above and relevant provisions of Act. Let this exercise be under WP(C).No.10100 OF 2020(J) 12 taken within period of one month from receipt of copy of this judgment after affording opportunity of hearing to petitioner and by passing speaking order. It is made clear that 3rd respondent would take into consideration whether claim made by petitioner would or would not fall under sub section (2), when original assessment 139 has been made or otherwise. It is further made clear that proceedings may continue but shall not be finalised until and unless request as envisaged under Ext.P6 within time frame afore-mentioned. Sd/- AMIT RAWAL JUDGE Nak WP(C).No.10100 OF 2020(J) APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF PAN CARD NO AACPE 5894 N OF PETITIONER EXHIBIT P2 TRUE COPY OF AADHAAR CARD NO 8771 6171 7265 OF PETITIONER EXHIBIT P3 TRUE COPY OF PETITIONERS LETTER DATED 30.12.2019 ADDRESSED TO ITO NON CORPORATE WARD (1) ERNAKULAM EXHIBIT P4 TRUE COPY OF LETTER DATED 4.1.2020 ADDRESSED TO 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF LETTER DATED 25.2.2020 COPIED TO 1ST RESPONDENT EXHIBIT P6 TRUE COPY OF LETTER DATED 25.2.2020 ADDRESSED TO 2ND RESPONDENT Ashick Abraham v. Principal Chief Commissioner of Income-tax, Ernakulam / Principal Commissioner of Income-tax, Kottayam / Income-tax Officer, Ward (1), Alapuzha
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