Jacob Barry vs. The State Tax Officer
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Cause title — parties, addresses and appearances
J U D G M E N T Petitioner is an assessee running a metal crusher unit. For the assessment year 2015-16, penality proceedings were initiated against him. The imposition of penalty was challenged before this Court in W.P.(C) No.28713/2017 and an interim stay was granted by this Court. In the meantime, proceedings under Section 25 (AA) of KVAT Act was initiated and an order of assessment as Ext.P9 dated 16.12.2021 was issued. Petitioner assails the said assessment order alleging that the proceedings imposing penalty have already been challenged before this Court and the subject matter of pending proceedings and hence the consequent assessment proceedings initiated,
WP(C) NO. 3559 OF 2022 3 must also be considered along with the pending writ petition.
The learned Government Pleader, Dr. Thushara James, on the other hand contended that petitioner has an efficacious remedy of an appeal under the statute and there is no reason why the said remedy should not be pursued. It was also pointed out that, the objection of the petitioner dated 02.08.2021 produced as Ext.P7 was also considered by the Assessing Officer including the pendency of this writ petition and that, sufficient reasons have been stated as to why despite the pendency of the writ petition and the stay granted in the said writ petition, the assessment proceedings could have continued.
I have considered the rival contentions. On a perusal of the assessment order it is evident that the assessee had refused to avail the opportunity of personal hearing granted on 29.11.2021. It is also noticed that the WP(C) NO. 3559 OF 2022 4 proposal for assessment was based upon the unaccounted sales for the year 2015-16, which was brought to the notice of the assessee. The procedure adopted by the Assessing Officer shows that the officer had complied with the principles of natural justice. The pendency of writ petition as WP(C) No. 28713/2017 and the interim order of stay dated 30.08.2017 are confined to the penalty proceedings. As rightly observed by the Assessing officer, the stay granted in WP(C) No. 28713/2017 is only against the recovery proceedings to realize the penalty imposed in the order under challenge in that writ petition. There was no restraint in the assessment proceedings initiated under Section 25AA of the Act.
In such a view of the matter, I am of the opinion that, there was no irregularity or absence of juri iction for the Assessing Officer to proceed to assess the petitioner. In such a view of the matter, I find no juri ictional error
WP(C) NO. 3559 OF 2022 5 in issuing the impugned order warranting an interference under Article 226 of the Constitution of India. Since the petitioner has an efficacious and alternative remedy available under the statute, reserving the said liberty of the petitioner to pursue his statutory remedies, this writ petition is dismissed. BECHU KURIAN THOMAS JUDGE LU
WP(C) NO. 3559 OF 2022 6 APPENDIX OF WP(C) 3559/2022 PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE ORDER ISSUED BY THE INTELLIGENCE OFFICER, SQUAD NO.VI, PALAKKAD DATED 29.10.2013. EXHIBIT P2 COPY OF NOTICE ISSUED BY 2ND RESPONDENT DATED 6.7.2017. EXHIBIT P3 COPY OF REPLY FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26.7.2017. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 28.7.2017. EXHIBIT P5 COPY OF ORDER IN WP(C) NO.28713/2017 OF THIS HON'BLE COURT DATED 30.8.2017. EXHIBIT P6 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 16.7.2021. EXHIBIT P7 COPY OF REPLY FILED BY THE PETITIONER DATED 2.8.2021. EXHIBIT P8 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 22.10.2021. EXHIBIT P9 COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT DATED 16.12.2021. //// PA To Judge
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.