Holy Cross Forane Church ... vs Principal Commissioner Of Income ...
2021 Latest Caselaw 20236 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943

                   WP(C) NO. 19557 OF 2021

PETITIONER:

          HOLY CROSS FORANE CHURCH CHERPUNKAL,
          CHERPUNKAL P.O.,
          KOTTAYAM-686 584,
          REPRESENTED BY ITS TRUSTEE
          MR.THOMAS MATHEW ARAMPULICKAL.
          BY ADVS.
          SRI.A.KUMAR
          SRI.P.J.ANILKUMAR
          SMT.G.MINI(1748)
          SRI.P.S.SREE PRASAD
          SRI.JOB ABRAHAM
          SRI.AJAY V.ANAND

RESPONDENTS:

    1     PRINCIPAL COMMISSIONER OF INCOME TAX ,
          PUBLIC LIBRARY BUILDING,
          LAL BAHADUR SASTRI ROAD,
          KOTTAYAM-686 001.
    2     NATIONAL FACELESS ASSESSMENT CENTRE,
          NORTH BLOCK, NEW DELHI-110 001,
          REPRESENTED BY PRINCIPAL CHIEF COMMISSIONER.
    3     ADDITIONAL COMMISSIONER,
          NATIONAL FACELESS ASSESSMENT CENTRE,
          NORTH BLOCK, NEW DELHI-110 001.
 W.P.(C) No.19557/21                -:2:-


              SRI.JOSE JOSEPH-SC



       THIS     WRIT   PETITION    (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 20.09.2021, THE COURT ON 30.09.2021 DELIVERED
THE FOLLOWING:
 W.P.(C) No.19557/21                 -:3:-




                     BECHU KURIAN THOMAS, J.
                     -----------------------------------------
                        W.P.(C) No.19557 of 2021
                     ----------------------------------------
                Dated this the 30th day of September, 2021

                               JUDGMENT

Petitioner, a religious and charitable trust registered under

section 12A(a) of the Income Tax Act, 1961, challenges Ext.P9 order

of assessment dated 12.08.2021 for the assessment year 2018-19.

2. Learned counsel for the petitioner Adv. A.Kumar has raised

various contentions assailing the order of assessment. The main

contention was that the expenditure incurred on construction of the

building, land development and construction of compound wall were

duly recorded in the books of accounts of the Trust and that without

relying upon the judgments of the jurisdictional High Court, which are

in favour of the petitioner, the assessing officer has relied upon

judgments of other High Courts, that too, which have no relation to

the facts arising in the instant case. It was also argued that in relation

to the sale of agricultural land, which falls outside the definition of a

capital asset, the assessment order fails to consider the reply of the

petitioner and instead relies upon the letter of the Sub Registrar for

concluding the nature of the land, thereby rendering the entire

assessment order as perverse. It is further argued that the issue

relating to addition of Rs.8,00,000/-, which was never the subject

matter of notice nor in the proceedings for assessment has found its

way into the order of assessment, thereby vitiating the assessment

order itself. On the aforesaid basis, it is contended by the learned

counsel for petitioner that this is a fit case for invoking the jurisdiction

under Article 226 of the Constitution of India.

3. I have heard learned counsel for the petitioner, Adv.A.Kumar

as well as Adv. Jose Joseph, learned Standing Counsel for the

respondents.

4. Having bestowed my anxious consideration to the

contentions raised by the petitioner, I find that this is not a fit case to

invoke the extraordinary jurisdiction of this Court under Article 226 of

the Constitution of India after bypassing the statutory remedies

available to the petitioner. The normal course of remedy open to

every assessee is to move the statutory appellate authorities, except

in very limited and exceptional circumstances like a breach of

fundamental rights or violation of the principles of natural justice or if

the order is passed in excess of jurisdiction or when there is a

challenge to the constitutionality of the statute in question. (See

G.Veerappa Pillai Proprietor, Sathi Vilas Bus Service, Porayar,

Tanjore District, Madras v. Raman and Raman Ltd.,

Kumbakonam, Tanjore District and Others (AIR 1952 SC 192)

and Assistant Commissioner of State Tax and Others v.

M/s.Commercial Steel Ltd. (C.A. No.5121 of 2021).

5. Having regard to the contentions raised by the learned

counsel for the petitioner as well as the facts arising in the case, I am

of the view that none of the circumstances mentioned above exists in

the instant case warranting interference under Article 226 of the

Constitution of India and that the petitioner can be relegated to the

remedy of statutory appeal.

Hence this writ petition stands dismissed reserving liberty of

the petitioner to pursue appropriate statutory remedies.

Sd/-

BECHU KURIAN THOMAS JUDGE vps

APPENDIX OF WP(C) 19557/2021

PETITIONER'S/S' EXHIBITS EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY INCOME TAX AUTHORITIES DATED 12.02.1974.

EXHIBIT P2 TRUE COPY OF THE PAN CARD DATED NIL. EXHIBIT P3 TRUE COPY OF THE ITR RETURN FOR AY 2018-

19 DATED 08.10.2018.

EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT DATED 08.10.2018.

EXHIBIT P5 TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT TO THE AGRICULTURAL WORKERS WELFARE FUND BY PETITIONER.

EXHIBIT P5(a) TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT TO THE AGRICULTURAL WORKERS WELFARE FUND BY PURCHASER LAND.

EXHIBIT P6 TRUE COPY OF THE DRAFT ASSESSMENT ORDER DATED 23.04.2021.

EXHIBIT P7 TRUE COPY OF THE REPLY DATED 02.05.2021. EXHIBIT P8 TRUE COPY OF THE STATEMENT OF THE PURCHASER DATED NIL.

EXHIBIT P9 TRUE COPY OF ASSESSMENT ORDER DATED 12.08.2021.

EXHIBIT P10 TRUE COPY OF NOTICE OF DEMAND DATED 12.08.2021.

EXHIBIT P11 TRUE COPY OF PENALTY NOTICE DATED 12.08.2021.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 02.07.1987 OF THIS HON'BLE COURT IN 1988 170 ITR 62 KER.

EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 12.02.2019 OF HON'BLE MADRAS HIGH COURT IN 310 CTR 483 (MAD.)

EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 09.08.1995 OF HON'BLE KARNATAKA HIGH COURT IN (2000) 162 CTR KAR 261.