Dismissed

Mafeedha, v. Union of India

Kerala HC18 Dec 2023WP(C)/28502/2022

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging an income tax assessment order for AY 2013-14. Holding that the notice under Section 148 was validly issued on 18.3.2020 and the petitioner s absence abroad precluded jurisdictional challenge based on limitation and lack of jurisdiction was not maintained. The court also noted the petitioner expired limitation for appeal.

What did the court decide?

Petition dismissed; pending interlocutory application dismissed; assessment order upheld.

Mafeedha, Vs Union of India — Constitutional and Fundamental Rights | Kerala HC (2023)

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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 DINESH KUMAR SINGH

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MONDAY, THE 18^TH DAY OF DECEMBER 2023 / 27TH AGRAHAYANA,

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1945

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WP(C) NO. 28502 OF 2022

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PETITIONER/S:

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MAFEEDHA, AGED 29 YEARS 326A BAITHULROWDHA, PERINGATHUR, THALASSERRY, KANNUR- 670675

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BY ADVS. RAJA KANNAN M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM

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RESPONDENT/S:

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1 UNION OF INDIA, REPRESENTED BY ITS REVENUE SECRETARY, MINISTRY OF FINANCE, NEW DELHI -110004

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2 ADDITIONAL / JOINT / DEPUTY / ASSISTANT COMMISSIONER OF INCOME TAX/ INCOME-TAX OFFICER, NATIONAL FACELESS ASSESSMENT CENTRE, ROOM NO. 401, 2ND FLOOR, E-RAMP, JAWAHARLAL NEHRU STADIUM, NEW DELHI- 110003 3 INCOME TAX OFFICER, WARD 1 AND TPS, AAYAKAR BHAVAN, KONNOTHUMCHAL, CHOVVA P.O., KANNUR-670 006.

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BY ADV CHRISTOPHER ABRAHAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 28502 OF 2022

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J U D G M E N T

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The present writ petition has been filed

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impugning the assessment order in Ext.P6 dated 29.9.2021 passed under Section 147 read with Section 144 of the Income Tax Act, 1961 (“Act”, for short).

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The petitioner-assessee is a partner of the firm, M/s.Swarnanjali Gold, Kadavathur. She failed to file return of income for the assessment year 2013-14. It was noticed that during the financial year relevant to the assessment year 2013-14, she had made investment of Rs.28 lakhs in the said firm. It was vehemently believed that the said income of Rs.28 lakhs in the hands of the petitioner-assessee had escaped assessment and, therefore, the assessment was re-opened under Section 147 of the Act by issuing notice under Section 148 on 18.3.2020. The said notice dated 18.3.2020 issued under Section 148 of the Act to the petitioner was returned with the postal endorsement “Address Left India. Return to

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WP(C) NO. 28502 OF 2022

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Sender”.

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A notice under Section 142(1) of the Act dated 29.9.2020 was issued to the petitioner requiring her to furnish details as mentioned in the said notice. In response to the final notice, the petitioner filed return in Ext.P5. The assessment order was finalised at a total income of Rs.28,84,368/- and tax liability was assessed at Rs.8,65,200/-.

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Sri.Rajakannan, learned counsel for the petitioner, submits that the petitioner has approached this Court challenging the said assessment order on the ground of the order being without jurisdiction. He submits that the first notice received by the petitioner was dated 29.9.2020, which is beyond the six years time period prescribed for re-opening of the assessment in case of escaped assessment of income. He, therefore, submits that after 31.3.2020, assessment could not have been re-opened in the case of the petitioner for the assessment year

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WP(C) NO. 28502 OF 2022

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2013-14 and that, all assessment proceedings for the said assessment year, including the assessment order, are without jurisdiction and are liable to be set aside.

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On the other hand, learned Standing Counsel for the Revenue submits that notice under Section 148 of the Act for reopening the assessment for the assessment year 2013-14 was issued to the petitioner on 18.3.2020 and the said notice could not be delivered as the petitioner had left India and the notice was returned back to the Department. In view thereof, he submits that it cannot be said that the assessment of the petitioner in respect of the assessment year 2013-14 was re-opened beyond the period of six years.

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I have considered the submissions. The assessment order itself takes note of the fact that the first notice under Section 148 of the Act was issued on 18.3.2020. However, the said notice was returned by the Postal authorities with the remarks “Addressee Left India. Return to Sender.”

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WP(C) NO. 28502 OF 2022

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There is a presumption in respect of the validity of the official acts under Section 114(e) of the Indian Evidence Act, 1872. The court would presume existence of any facts in respect of judicial and official acts, which are regularly performed. In the present case, there is no ground to doubt the factual finding recorded in the assessment order in respect of the notice under Section 148 having been issued to the petitioner on 18.3.2020. If the petitioner had left the premises, the Department cannot be held liable and the petitioner cannot take advantage of the fact that she did not receive notice dated 18.3.2020 issued under Section 148 of the Act for re-opening of the assessment for the assessment year 2013-14. In view thereof, I find no substance in the submission that the assessment of the petitioner for the assessment year 2013-14 was re-opened beyond the six years limitation period prescribed under the Act.

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Another important fact which is to be

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WP(C) NO. 28502 OF 2022

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taken note of is that the assessment order was passed on 29.9.2021 and the petitioner had approached this Court after the limitation period for filing appeal is over. The petitioner had never taken objection regarding the limitation period in the assessment proceedings.

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Considering the aforesaid fact also the present writ petition is liable to be rejected. Thus, on the grounds that the assessment order being passed within jurisdiction and the petitioner having not taken any objection in respect of the limitation period before the assessing authority and also that the present writ petition having been filed much after the limitation period for filing appeal got expired, the present writ petition fails and the same is hereby dismissed. Pending interlocutory application, if any, in the present writ petition stands dismissed.

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Sd/DINESH KUMAR SINGH JUDGE

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WP(C) NO. 28502 OF 2022

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APPENDIX OF WP(C) 28502/2022

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PETITIONER EXHIBITS

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Exhibit -	P1 THE TRUE COPY OF THE NOTIFICATION NO. 61/2019/F.NO. 370149/154/2019-TPL {S.O. 3264(E)} DATED 12.09.2019 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, UNDER THE 1ST RESPONDENT
Exhibit -	P2 THE TRUE COPY OF THE NOTIFICATION NO. 60/2020/F.NO. 370149/154/2019-TPL{S.O. 2745(E)} DATED 13.08.2020 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, UNDER THE 1ST RESPONDENT
Exhibit -	P3 THE TRUE COPY OF THE NOTIFICATION NO. 61/2020/F.NO. 370149/154/2019-TPL {S.O. 2746(E)} DATED 13.08.2020 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, UNDER THE 1ST RESPONDENT
Exhibit -	P4 THE TRUE COPY OF THE NOTICE DATED 13.09.2021 ISSUED BY THE 3RD RESPONDENT
Exhibit -	P5 THE TRUE COPY OF THE RETURN OF INCOME DATED 23.09.2021 FILED BY THE PETITIONER FOR THE A.Y 2013-14
Exhibit -	P6 THE TRUE COPY OF THE ASSESSMENT ORDER DATED 29.09.2021 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 147 READ WITH SECTION 144 OF THE ACT FOR THE A.Y 2013-14
Exhibit -	P7 THE TRUE COPY OF THE NOTICE OF PENALTY DATED 29.09.2021 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT
Exhibit -	P7(a) THE TRUE COPY OF THE NOTICE OF PENALTY DATED 29.09.2021 ISSUED BY THE 3RD

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WP(C) NO. 28502 OF 2022

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RESPONDENT UNDER SECTION 274 READ WITH SECTION 271F OF THE ACT

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Exhibit - P8 THE TRUE COPY OF AN ARTICLE DATED 22.08.2021, DOWNLOADED FROM WWW.CACLUBINDIA.COM, PROVIDING INFORMATION RELATING TO THE GLITCHES IN THE NEW IT PORTAL Exhibit - P8(a) THE TRUE COPY OF THE INSTRUCTION NO. 01/2022 DATED 11.05.2022 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MISNISTRY OF FINANCE, NEW DELHI Exhibit - P9 THE TRUE COPY OF THE LETTER DATED 08.07.2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER, INTIMATING THE OUTSTANDING AMOUNTS FOR THE A.Y. 2013-14

Mafeedha, v. Union of India

Case brief

What is this about?

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Mafeedha, v. Union of India

Case brief

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What did the court decide?

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