IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 19968 OF 2019
PETITIONER:
ANIL KUMAR SHARMA,
AGED 43 YEARS, S/O.O.P.SHARMA,
8/2117 A, SHARMA NIKETHAN, MATTANCHERRY VILLAGE,
MATTANCHERRY, ERNAKULAM-682001.
BY ADVS.
NAVEEN THOMAS
V.P.NARAYANAN
NISHA JOHN
RESPONDENTS:
1 THE TAX RECOVERY OFFICER,
RANGE 1, ERNAKULAM, C.R.BUILDING, I.S.PRESS ROAD, COCHIN,
ERNAKULAM-682018.
2 DEPUTY COMMISSIONER OF INCOME TAX,
CENTRAL CIRCLE-1, ERNAKULAM, C.R.BUILDING, I.S.PRESS ROAD,
COCHIN, ERNAKULAM-682018.
3 INCOME TAX APPELLATE TRIBUNAL,
REPRESENTED BY THE REGISTRAR, COCHIN BENCH,
COCHIN-682037.
4 SUB REGISTRAR, MARADU SUB REGISTRY,
MARADU JUNCTION, ERNAKULAM-682304.
5 SUB REGISTRAR, ERNAKULAM SUB REGISTRY,
ERNAKULAM-682011.
6 VILLAGE OFFICER, MARADU VILLAGE,
MARADU, ERNAKULAM-682040.
7 VILLAGE OFFICER, MULAVUKADU VILLAGE,
KOCHI, ERNAKULAM-682504.
OTHER PRESENT:
SRI. JOSE JOSEPH (SC)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 19968 OF 2019 2
JUDGMENT
The petitioner has approached this Court being aggrieved by attachments effected in respect of the petitioner's properties for recovery of Income Tax arrears.
2. The learned counsel appearing for the petitioner points out that at a time when the initial attachment was effected there was no demand as the assessment orders giving rise to the demand had already been set aside by the I st Appellate authority. It is submitted that at that point of time the petitioner could not be treated as an assessee in default and proceedings for attachment under the 2nd schedule to the Income Tax Act could not have been made.
3. The learned Standing Counsel appearing for the department would submit that the orders of the Ist Appellate authority in favour of the petitioner were challenged before the Income Tax Appellate Tribunal and by Ext.P10 order, the Income Tax Appellate Tribunal had remanded the matter to the assessing WP(C) NO. 19968 OF 2019 3 authority for a fresh consideration. It is submitted that the assessing officer has thereafter given effect to the orders of the Income Tax Appellate Tribunal and now the demand against the petitioner is approximately Rs.5.77 crores (excluding interest etc.). It is submitted that the attachment was made to protect the interest of revenue and even on the petitioner's own showing attachment over one item of property has been lifted by the department. He refers to the affidavit filed in support of I.A.No.1 of 2022. It is pointed that the attachment over an item of property in Mulavukad was lifted by the department (see Ext.P17).
4. The learned counsel appearing for the petitioner submits that the petitioner had filed miscellaneous applications before the Income Tax Appellate Tribunal for rectification and those applications are still pending consideration before the Income Tax Appellate Tribunal. It is submitted that apart from the property at Mulavukad the petitioner has certain item of property at Maradu which is mortgaged WP(C) NO. 19968 OF 2019 4 to a financial institution. It is submitted that the property at Mualavukad is valued at approximately Rs.8.14 Crores as per Ext.20 valuation certificate and the petitioner will have no objection if the attachment is continued in respect of that property while releasing the property situated in Maradu. The learned counsel also points out the provisions of second proviso to Rule 3 of the second Schedule to the Income Tax Act which provides that the attachment can be lifted if sufficient securities are provided. It is submitted that going by the Rule 52 of the Second Schedule, even in respect of properties under attachment only such portion of the property as may be necessary to satisfy the certificate needs to be sold. It is pointed out that excessive attachment cannot be made. It is also pointed out that the petitioner has already approached the Tax recovery officer through Ext.P19 (produced along with I.A.No.1 of 2022) seeking the lifting of attachment in respect of the property belonging to the petitioner at Maradu while continuing the attachment on the Mulavukad property. WP(C) NO. 19968 OF 2019 5
5. Having heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent department, I am of the opinion that this Writ Petition can be disposed of directing the 1 st respondent to consider and pass orders on Ext.P19, also keeping in mind the provisions of Rule 3 of the second schedule to the Income Tax Act and after affording an opportunity of hearing to the petitioner. Considering the urgency expressed by the learned counsel for the petitioner, the Tax Recovery Officer shall endeavour to pass orders on Ext.P19 within a period of one month from the date of receipt of a certified copy of this judgment.
Sd/-
GOPINATH P.
JUDGE ats WP(C) NO. 19968 OF 2019 6 APPENDIX OF WP(C) 19968/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 29.12.2010 FOR THE ASSESSMENT YEAR 2007-08 PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, ERNAKULAM.
EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.12.2010 FOR THE ASSESSMENT YEAR 2008-09 PASSED BY THE SECOND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ASSESSMENT DATED 29.12.2010 FOR THE YEAR 2009-10 PASSED BY THE SECOND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 21.3.2014 PASSED BY THE INCOME TAX APPEALS, KOCHI IN APPEAL NO.E242/CIT(A)-1/1011.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21.3.2014 PASSED BY THE INCOME TAX APPEALS, KOCHI IN APPEAL NO.E243/CIT(A)-1/1011.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21.3.2014 PASSED BY THE INCOME TAX APPEALS, KOCHI IN APPEAL NO.E244/CIT(A)-1/1011.
EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 31.3.2014 DEMANDING THE PETITIONER TO PAY AN AMOUNT OF RS.62,96,751/-. EXHIBIT P8 TRUE COPIES OF THE NOTICE DATED 31.3.2014 DEMANDING THE PETITIONER TO PAY AN AMOUNT OF RS.5,18,83,881/-.
EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 31.3.2014 DEMANDING THE PETITIONER TO PAY AN AMOUNT OF RS.1,00,01,184/-.
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 1.8.2016 IN ITA NOS.252-254/COCH/2014 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, KOCHI ORDER DATED 1.8.2016 IN ITA NOS.252-254/COCH/2014 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, KOCHI. WP(C) NO. 19968 OF 2019 7 EXHIBIT P11 TRUE COPY OF THE ORDER OF ATTACHMENT ISSUED TO THE PETITIONER FOR HIS PROPERTIES IN MULAVUKAD VILLAGE, DATED 18.10.2016.
EXHIBIT P12 TRUE COPY OF THE ORDER OF ATTACHMENT DATED 24.10.2016 FOR HIS PROPERTIES IN MARADU VILLAGE. EXHIBIT P13 TRUE COPY OF THE MISCELLANEOUS PETITION PREFERRED BY THE PETITIONER BEFORE THE ITAT. COCHIN. EXHIBIT P14 TRUE COPY OF THE ORDER DATED 27.11.2018 IN W.P.(C) NO.33772 OF 2018 PASSED BY THIS HON'BLE COURT. EXHIBIT P15 TRUE COPY OF THE REQUEST DATED 31/10/2016 MADE BY PETITIONER TO THE RESPONDENT.
EXHIBIT P16 TRUE COPY OF THE REQUEST LETTER DATED 20/12/2021. EXHIBIT P17 TRUE COPY OF THE ORDER DATED 3/12/2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE REQUEST LETTER DATED 04/04/2022. EXHIBIT P19 TRUE COPY OF THE REQUEST DATED 8/4/2022. EXHIBIT P20 TRUE COPY OF THE VALUATION REPORT DATED 6/4/2022, PREPARED BY THE GOVERNMENT APPROVED VALUER. EXHIBIT P21 TRUE COPY OF THE JUDGMENT DATED 19/5/2022 IN WPC NO.10797/2022