Disposed

Mohammed Haneefa Onathu Kattil, v. Disputes Resolution Panel -2

Kerala HC1 Mar 2024WP(C)/208/2023

Case brief

AI extract

What is this about?

Two NRI assessees challenged Dispute Resolution Panel orders for AYs 2015-16 and 2016-17, contending that after cross-examining a witness they were denied the statutory opportunity of hearing before the Panel issued directions. The court held cross-examination is not an opportunity of hearing, set aside the orders and remanded for fresh hearing.

What did the court decide?

Impugned DRP orders set aside; matters remanded to the Dispute Resolution Board to hear the petitioners and finalise directions under Section 144C(5).

Mohammed Haneefa Onathu Kattil, Vs Disputes Resolution Panel -2 — Income Tax | Kerala HC (2024)

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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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FRIDAY, THE 1^ST DAY OF MARCH 2024 / 11TH PHALGUNA, 1945

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WP(C) NO. 198 OF 2023

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PETITIONER/S:

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SUHAIL ONATHU KATTIL, AGED 35 YEARS, ONATHU KATTIL HOUSE, MARAKKARA P.O., MALAPPURAM, PIN - 676518

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BY ADVS.ANIL D. NAIR, TELMA RAJU EDATHARA VINEETA KRISHNAN P.K.BIJU, ANJANA A.

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RESPONDENT/S:

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1 DISPUTES RESOLUTION PANEL -2, 4TH FLOOR, 'A' WING, COMMISSIONER OF INCOME TAX, KENDRIYA SADAN, KORAMANGALA, BANGALORE, PIN - 560034

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2 INCOME TAX OFFICER (INTERNATIONAL TAXATION), WARD -1, KOZHIKODE, PIN - 673001

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BY ADVS.G.KEERTHIVAS P.G.JAYASHANKAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2024, ALONG WITH WP(C).208/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos. 198 & 208/2023

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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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FRIDAY, THE 1^ST DAY OF MARCH 2024 / 11TH PHALGUNA, 1945

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WP(C) NO. 208 OF 2023

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PETITIONER/S:

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MOHAMMED HANEEFA ONATHU KATTIL, AGED 44 YEARS ONATHU KATTIL HOUSE, KADAMPUZHA VIAL, MARAKKARA P.O. , MALAPPURAM, PIN - 676518

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BY ADVS.ANIL D. NAIR; TELMA RAJU EDATHARA VINEETA KRISHNAN P.K.BIJU; ANJANA A.

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RESPONDENT/S:

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1 DISPUTES RESOLUTION PANEL -2, 4TH FLOOR, 'A' WING, COMMISSIONER OF INCOME TAX, KENDRIYA SADAN, KORAMANGALA, BANGALORE, REPRESENTED BY ASSISTANT COMMISSIONER OF INCOME TAX (HQ) & SECRETARY., PIN - 560034

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2 INCOME TAX OFFICER (INTERNATIONAL TAXATION), WARD -1, KOZHIKODE, PIN - 673001

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BY ADVS.G.KEERTHIVAS P.G.JAYASHANKAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2024, ALONG WITH WP(C).198/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos. 198 & 208/2023

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J U D G M E N T

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[WP(C) Nos.198/2023, 208/2023]

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The two writ petitions have been filed by the petitioners,

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NRIs, impugning Exts.P13(a) and P13(b) orders in W.P.(C) No.198/2023 and Exts.P14(a) and P14(b) orders in W.P.(C) No.208/2023 for the Assessment Years 2015-16 and 2016-17.

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The petitioners being NRI assessees under the provisions of the Income Tax Act 1961 (for short, ‘the Act’), the assessment is required to be completed as per the provisions of Section 144C of the Act. The petitioner in W.P.(C)

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No.198/2023 had filed a return of its income for the Assessment Year 2015-16 on 31.03.2018, disclosing a total income of Rs.9,18,610/- and for the Assessment Year 2016-17 on the same day, disclosing the total income of Rs.7,96,730/-. An Income Tax search under Section 132 of the Act was

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conducted on the premise of Mr Noor Mohammed Noorshah,

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W.P.(C) Nos. 198 & 208/2023

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Kalliyath, Panniyankara (M/s. Kalliyath Group) on 10.02.2017. The residential premises of Sri Manoj Divakar, General Manager of Focus Mall, Mavoor Road, Kozhikode, is also covered under Section 132 of the Act. During the course of the search, a computer printout was seized from the premises of Sri Manoj Divakar. The seized document contained the details of the transaction of Rs.13,65,36,092/- relating to land purchased behind Focus Mall. Draft assessment orders were served on the petitioner in respect of both the Assessment Years to which the petitioners filed objections before the Assessing Officer, as well as the Dispute Resolution Board. A witness, Sri. Manoj Divakar, one of the buyers of the property, was cross-examined on behalf of the petitioners. Thereafter, no opportunity for a hearing was given to the petitioner, as provided under Sub-section (11) of Section 144C of the Act. The Dispute Resolution Board issued a direction to the

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W.P.(C) Nos. 198 & 208/2023

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Assessing Officer to finalize the assessment order, in the light of the direction issued by the Dispute Resolution Board.

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The issue involved in these writ petitions falls

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under a narrow compass: Whether the opportunity of crossexamination of the witness is an opportunity of hearing as provided under Sub-section (11) of Section 144C or after the evidence is collected and cross-examination is completed, the assessee is required to be afforded an opportunity of further hearing before the Dispute Resolution Board ?

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Sri Anil D Nair, learned Counsel for the petitioners, has submitted the opportunity of hearing as provided under Sub-section (11) of Section 144C would mean an opportunity of hearing after collecting the evidence, which would include cross-examination of the witness as well. The crossexamination of the witness cannot be equated with the opportunity for a hearing. Therefore, the orders impugned in

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W.P.(C) Nos. 198 & 208/2023

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these writ petitions suffer from violation of the statutory prescription under Sub-section (11) of Section 144C as well as violation of the principles of natural justice.

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Sri G Keerthivas learned Standing Counsel for the Income Tax Department, however, has submitted that the witness was cross-examined on behalf of the petitioners and since the evidence of the witness has been considered by the Dispute Resolution Board, there is no further requirement of opportunity of hearing to the assessee by the Dispute Resolution Board after the witness is cross-examined and the evidence has been considered by the Dispute Resolution Board while giving the directions to the Assessing Officer on the draft assessment order.

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Section 144C lays down the detailed procedure for completing the assessment proceedings in respect of an NRI/ eligible assessee. Section 144C of the Act on reproduction

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W.P.(C) Nos. 198 & 208/2023

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reads as under:

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“ 144C. Reference to dispute resolution panel .—

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(1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order,—

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(a) file his acceptance of the variations to the Assessing Officer; or

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(b) file his objections, if any, to such variation with,—

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(i) the Dispute Resolution Panel; and

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(ii) the Assessing Officer.

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(3) The Assessing Officer shall complete the assessment on the basis of the draft order, if—

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(a) the assessee intimates to the Assessing Officer the acceptance of the variation; or

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(b) no objections are received within the period specified in sub-section (2).

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(4) The Assessing Officer shall, notwithstanding anything contained 2[in section 153 or section 153B], pass the

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W.P.(C) Nos. 198 & 208/2023

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assessment order under sub-section (3) within one month from the end of the month in which,—

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(a) the acceptance is received; or

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(b) the period of filing of objections under sub-section (2) expires.

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(5) The Dispute Resolution Panel shall, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment.

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(6) The Dispute Resolution Panel shall issue the directions referred to in sub-section (5), after considering the following, namely:—

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(a) draft order;

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(b) objections filed by the assessee;

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(d) report, if any, of the Assessing Officer, Valuation Officer or Transfer Pricing Officer or any other authority;

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(e) records relating to the draft order;

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(f) evidence collected by, or caused to be collected by, it; and

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(g) result of any enquiry made by, or caused to be made by, it.

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(7) The Dispute Resolution Panel may, before issuing any directions referred to in sub-section (5),—

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W.P.(C) Nos. 198 & 208/2023

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(a) make such further enquiry, as it thinks fit; or

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(b) cause any further enquiry to be made by any incometax authority and report the result of the same to it.

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(8) The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in the draft order so, however, that it shall not set aside any proposed variation or issue any direction under subsection (5) for further enquiry and passing of the assessment order.

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Explanation.—For the removal of doubts, it is hereby declared that the power of the Dispute Resolution Panel to enhance the variation shall include and shall be deemed always to have included the power to consider any matter arising out of the assessment proceedings relating to the draft order, notwithstanding that such matter was raised or not by the eligible assessee.

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(9) If the members of the Dispute Resolution Panel differ in opinion on any point, the point shall be decided according to the opinion of the majority of the members.

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(10) Every direction issued by the Dispute Resolution Panel shall be binding on the Assessing Officer.

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(11) No direction under sub-section (5) shall be issued unless an opportunity of being heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the interest of the assessee or the interest of the revenue, respectively.

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W.P.(C) Nos. 198 & 208/2023

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(12) No direction under sub-section (5) shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee.

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(13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153 or section 153B], the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received.

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(14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under sub-section (2) by the eligible assessee.

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(14A)The provisions of this section shall not apply to any assessment or reassessment order passed by the Assessing Officer with the prior approval of the 4[Principal Commissioner or Commissioner] as provided in sub-section (12) of section 144BA.

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(15) For the purposes of this section,—

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(a) “Dispute Resolution Panel” means a collegium comprising of three 4[Principal Commissioner or Commissioners] of Income-tax constituted by the Board for this purpose;

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(b) “eligible assessee” means,—

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(i) any person in whose case the variation referred to in sub-

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W.P.(C) Nos. 198 & 208/2023

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section (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and

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(ii) any non-resident not being a company, or any foreign company.”

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From the language employed in Sub-section (11) of

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Section 144C of the Act, it is evident that the Statute has mandated an opportunity for hearing by the Dispute Resolution Board to an assessee before passing an order on the draft assessment, before directing the Assessing Officer to finalize the assessment. The cross-examination of witnesses is only a process of collecting the evidence and it cannot be equated with the opportunity of hearing, as is mandated under sub-section (11) of Section 144C of the Act. A witness is put to cross-examination to test the veracity and truthfulness of his stand. But the same is not an opportunity of hearing as contended by Sri Anil D Nair.

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7.1 Therefore, I am of the view that the impugned

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W.P.(C) Nos. 198 & 208/2023

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orders have been passed in violation of Sub-section (11) of Section 144C, as the petitioner was not afforded an opportunity of hearing, as is mandated under Sub-section (11) of Section 144C of the Act. Therefore, the impugned orders are unsustainable, and the same are set aside. The matters are remanded back to the Dispute Resolution Board to issue notices of hearing to the petitioners and after hearing the petitioners, finalize the order under Sub-section (5) of Section 144C.

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The writ petitions stand disposed of.

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Sd/-

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DINESH KUMAR SINGH JUDGE

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jjj

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W.P.(C) Nos. 198 & 208/2023

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APPENDIX OF WP(C) 208/2023

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF REASONS FOR BELIEF OF ESCAPED ASSESSMENT FOR THE YEAR 2015-16
Exhibit P2	TRUE COPY OF REASONS FOR BELIEF OF ESCAPED ASSESSMENT FOR THE YEAR 2016-17
Exhibit P3	TRUE COPY OF DRAFT ORDER UNDER SEC.144C FOR THE ASSESSMENT YEAR 2015-16 DATED 25.03.2022
Exhibit P4	TRUE COPY OF DRAFT ORDER UNDER SEC.144C FOR THE ASSESSMENT YEAR 2016-17 DATED 25.03.2022
Exhibit P5	TRUE COPY OF FORM 35A FILED BEFORE THE 1ST RESPONDENT FOR THE ASSESSMENT YEARS 2015-16
Exhibit P6	TRUE COPY OF FORM 35A FILED BEFORE THE 1ST RESPONDENT FOR THE ASSESSMENT YEAR 2016-17
Exhibit P7	TRUE COPY OF THE POSTING NOTICE DATED 22.11.2022 POSTING THE MATTER FOR HEARING ON 25.11.2022
Exhibit P8	TRUE COPY OF THE NOTICE DATED 12.12.2022 BY THE 1ST RESPONDENT
Exhibit P8 (a)	TRUE COPY OF THE NOTICE DATED 16.12.2022 ISSUED BY THE 1ST RESPONDENT
Exhibit P8 (b)	TRUE COPY OF THE NOTICE DATED 16.12.2022 ISSUED BY THE 1ST RESPONDENT
Exhibit P9	TRUE COPY OF THE PROCEEDINGS DATED 19.12.2022
	FURNISHED TO THE PETITIONER BY THE 2ND RESPONDENT

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W.P.(C) Nos. 198 & 208/2023

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Exhibit P10 TRUE COPY OF REBUTTALS FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P11 TRUE COPY OF NOTICE DATED 27.12.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P12 TRUE COPY OF LETTER DATED 28.12.2022 POSTING THE MATTER FOR HEARING ON 29.12.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit P13 (a) TRUE COPY OF POSTING NOTICE DATED 26.12.2022 FOR THE A.Y. 2015-16 ISSUED BY THE 1ST RESPONDENT Exhibit P13 (b) TRUE COPY OF POSTING NOTICE DATED 26.12.2022 FOR THE A.Y. 2016-17 ISSUED BY THE 1ST RESPONDENT. Exhibit P14 (a) TRUE COPY OF ORDER DATED 30.12.2022 FOR THE A.Y. 2015-16 ISSUED BY THE 1ST RESPONDENT. Exhibit P14 (b) TRUE COPY OF ORDER DATED 30.12.2022 FOR THE A.Y. 2016-17 ISSUED BY THE 1ST RESPONDENT.

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W.P.(C) Nos. 198 & 208/2023

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APPENDIX OF WP(C) 198/2023

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF REASONS FOR BELIEF OF ESCAPED ASSESSMENT FOR THE YEAR 2015-16 DATED 15.03.2022
Exhibit P2	TRUE COPY OF REASONS FOR BELIEF OF ESCAPED ASSESSMENT FOR THE YEAR 2016-17 DATED 15.03.2022
Exhibit P3	TRUE COPY OF DRAFT ORDER UNDER SEC.144C FOR THE ASSESSMENT YEAR 2015-16 DATED 25.03.2022
Exhibit P4	TRUE COPY OF DRAFT ORDER UNDER SEC.144C FOR THE ASSESSMENT YEAR 2016-17 DATED 25.03.2022
Exhibit P5	TRUE COPY OF FORM 35A FILED BEFORE THE 1ST RESPONDENT FOR THE ASSESSMENT YEARS 2015-16
Exhibit P6	TRUE COPY OF FORM 35A FILED BEFORE THE 1ST RESPONDENT FOR THE ASSESSMENT YEAR 2016-17
Exhibit P7 (a)	TRUE COPY OF THE POSTING NOTICE DATED 22.11.2022 POSTING THE MATTER FOR HEARING ON 25.11.2022 FOR A.Y 2015-16 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER
Exhibit P7 (b)	TRUE COPY OF THE POSTING NOTICE DATED 22.11.2022 POSTING THE MATTER FOR HEARING ON 25.11.2022 FOR A.Y 2016-17 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P8 (a)	TRUE COPY OF THE POSTING NOTICE DATED 12.12.2022 POSTING THE MATTER FOR HEARING ON 16.12.2022 FOR A.Y 2015-16 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P8 (b)	TRUE COPY OF THE POSTING NOTICE DATED 12.12.2022 POSTING THE MATTER FOR HEARING ON 16.12.2022 FOR A.Y 2016-17 ISSUED BY THE 1ST RESPONDENT TO THE

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W.P.(C) Nos. 198 & 208/2023

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PETITIONER.

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Exhibit P8 (c) TRUE COPY OF THE POSTING NOTICE DATED 16.12.2022 POSTING THE MATTER FOR HEARING ON 19.12.2022 FOR A.Y 2015-16 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. Exhibit P8 (d) TRUE COPY OF THE POSTING NOTICE DATED 16.12.2022 POSTING THE MATTER FOR HEARING ON 19.12.2022 FOR A.Y 2016-17 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. Exhibit P9 TRUE COPY OF THE INTIMATION ISSUED BY THE 1ST RESPONDENT FORWARDING THE REQUIRED DOCUMENTS TO THE PETITIONER. Exhibit P10 TRUE COPY OF REBUTTALS FILED BY THE PETITIONER Exhibit P11 TRUE COPY OF SUMMONS ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P12 TRUE COPY OF LETTER DATED 28.12.2022 POSTING THE MATTER FOR HEARING ON 29.12.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. Exhibit P13 (a) TRUE COPY OF ORDER DATED 30.12.2022 FOR THE A.Y. 2015-16 ISSUED BY THE 1ST RESPONDENT. Exhibit P13 (b) TRUE COPY OF ORDER DATED 30.12.2022 FOR THE A.Y. 2016-17 ISSUED BY THE 1ST RESPONDENT

Mohammed Haneefa Onathu Kattil, v. Disputes Resolution Panel -2

Case brief

What is this about?

What did the court decide?

Mohammed Haneefa Onathu Kattil, v. Disputes Resolution Panel -2

Case brief

What is this about?

What did the court decide?

What the court decided

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