Dismissed

Girija Sabariyar v. Union of India

Kerala HC5 Apr 2016WP(C)/13317/2016

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a writ petition challenging an income tax assessment order on the grounds of violation of natural justice due to lack of personal hearing. The Court held that the petitioner failed to file a return claiming exemption and did not substantiate her claims. Consequently, the writ petition was dismissed, and the petitioner was directed to pursue alternate remedies before

What did the court decide?

The writ petition is dismissed in limine, leaving open the remedy of the assessee before the Appellate Authority.

Girija Sabariyar Vs Union of India — Income Tax | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938

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WP(C).No. 13317 of 2016 (L)

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PETITIONER:

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SMT. GIRIJA SABARIAR ROSE NIVAS, KOTTAPPURAM VIZHINJAM, THIRUVANANTHAPURAM-695 521.

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BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR

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SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.RAJA KANNAN

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RESPONDENTS:

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1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NORTH BLOCK, NEW DELHI-110 001.

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2. THE INCOME TAX OFFICER WARD-2(4), AAYAKAR BHAVAN KOWDIYAR, THIRUVANANTHAPURAM-695 003.

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BY SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 13317 of 2016 (L)

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APPENDIX

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PETITIONER'S EXHIBITS :-

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EXT.P1 - COPY OF THE ORDER OF ASSESSMENT DATED 11.03.2016 ISSUED BY THE 2ND RESPONDENT UNDER THE ACT FOR THE ASSESSMENT YEAR 2012-2013.

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RESPONDENTS' EXHIBITS:- NIL

//TRUE COPY//

P.A. TO JUDGE

K. VINOD CHANDRAN, J.

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---------------------------------W.P(C). No.13317 of 2016-L ---------------------------------Dated this the 5^th day of April, 2016

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JUDGMENT

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The petitioner is aggrieved by Ext.P1 order of assessment, made by the respondent Assessing Officer. The petitioner has filed the above writ petition on the ground that there is a clear violation of principles of natural justice for reason of no personal hearing having been given to the petitioner. The learned Standing Counsel refutes such contention by reading Ext.P1 itself, pointing out that there were several opportunities granted to the petitioner, which was not availed and no return, as directed was filed.

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W.P.(C) No.13317 of 2016-L

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The petitioner contends that the petitioner is entitled to exemption and she is not liable to pay any tax and hence she cannot be compelled to file a return.

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A reading of Ext.P1 would indicate that a

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notice dated 23.10.2014 under Section 148 of the Income Tax Act, 1961 [for brevity, the Act of 1961] was issued and was served on the petitioner on 29.10.2014. In response to this, the petitioner filed an objection dated 10.03.2015, wherein it was requested that the Department may ascertain the nature of the land involved in the acquisition from the District Collector and take necessary further action, exempting the petitioner from assessment of tax. Thereafter, again notice dated 14.07.2015 was issued under Section 142(1), requiring the

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W.P.(C) No.13317 of 2016-L

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assessee to file the return of income and other details. Again, the petitioner filed an objection dated 07.11.2015, raising the very same contentions.

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A further communication was addressed to the assessee on 12.11.2015 by the Department, specifically rejecting the objections and again directing the filing of her return of income.It was also indicated in the letter dated 12.11.2015 that if no return is filed, then the assessment would be completed ex parte under Section 144 of the Act of 1961.The assessee did not respond to the same, upon which the assessing officer proceeded to complete the assessment on best judgment.

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Information was called for under Section 133(6) of the Act of 1961 from the Managing

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W.P.(C) No.13317 of 2016-L

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Director and Chief Executive, Vizhinjam International Seaport Limited [VISL] and based on the details received, proceeded to make an assessment as provided under Section 144 of the Act of 1961. The contention of exemption is also seen considered. The last communication before completion of proceedings declined the claim of exemption on the ground that the property sold was within the municipal limits and also that the sale was not by way of compulsory acquisition and was a negotiated sale.

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The assesse, from a reading of the impugned order, seems to have taken a stand that the details of the properties are to be ascertained by the assessing officer to grant the claim of exemption. The assesse also is

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W.P.(C) No.13317 of 2016-L

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said to have been given a hearing on 13-112015, when the case was discussed and the assessee had filed a letter seeking time to produce the revenue records relating to the land. The assessee was again requested to file a return and only on continued refusal after issuance of a further notice dated 05-01-2016, was the impugned order passed. After collection of details under S 133(6), a pre-assessment notice dated 03-02-2016 was also issued calling for objections and posting the case for hearing on 15-02-2016.

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On 15.02.2016, the assessee did not

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appear for hearing, nor did she file any objection. Again a reminder was issued to the assessee, posting the case on 22.02.2016, when the assessee appeared personally and requested

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W.P.(C) No.13317 of 2016-L

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for a further adjournment of one month. Adjournment was also granted till 29.02.2016, when the assessee appeared and submitted that steps were being taken to file the return of income and the documents for computing capital gains. It was also submitted that the return would be uploaded on or before 08.03.2016. But on 08.03.2016, again without any supporting documents, an objection was filed, again raising the very same contentions and asserting that the notice was issued, without verifying the nature of the land as per the Revenue records and that no material is provided to show that the land acquired is an agricultural land. The assessee wanted the Assessing Officer to verify the Revenue records without producing any documents. The claim of violation of

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principles of natural justice on the ground that no hearing was granted, is factually incorrect and the above proceedings as seen from Ext.P1 order would definitely indicate that the petitioner was granted ample opportunities.

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The petitioner has a claim that the income received on the sale of land is exempted under the Act of 1961. The petitioner admits to have received income far in excess of the non-

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taxable limit as per the Act of 1961. The assessee did not have file a return on the

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ground that the entire income is exempted. However, when a notice is issued under the Act of 1961, the exemption being one claimed under the Act, the procedure in the Act would have to be followed and that is the filing of a return,

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W.P.(C) No.13317 of 2016-L

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claiming exemption, producing documents and materials to substantiate the exemption claimed. The assessee cannot contend that since the income was exempted, it is the burden of the Assessing Officer to substantiate the exigiability of tax to such income. The income having exceeded the limit provided under the Act of 1971, it is for the assessee to substantiate the exemption claimed.

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Further, as indicated in Ext.P1, there are factual issues involved, which cannot be gone into in a writ petition under Article 226 of the Constitution of India. The claim of the assessee also is not of the Income Tax Officer having proceeded without jurisdiction, but is one of exemption under the Act of 1961, which cannot be looked at invoking the powers

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W.P.(C) No.13317 of 2016-L

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conferred under Article 226 of the Constitution of India, especially when the assessee has not filed a return claiming exemption or produced substantiating material. Considering the fact that there is an alternate remedy available under the Act of 1961 itself, this Court is of the opinion that the writ petition need not be entertained.

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The writ petition is dismissed in limine , leaving open the remedy of the assessee before the Appellate Authority.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

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//True Copy//

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P.A. to Judge.

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sp/05/04/16

Girija Sabariyar v. Union of India

Case brief

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Girija Sabariyar v. Union of India

Case brief

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