Abraham Thomas vs Income Tax Officer
2022 Latest Caselaw 9105 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                        WP(C) NO. 23704 OF 2022
PETITIONER:

          ABRAHAM THOMAS
          AGED 62 YEARS
          G-80, PANAMPILLY NAGAR P.O., PANAMPILLY NAGAR, KOCHI,
          ERNAKULAM - 682 036, KERALA,
          REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
          JIBY ANTONY,
          RESIDING AT PADALODIYIL, KALLUVAYAL P.O., IRUTTY,
          KERALA - 670 703.

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


RESPONDENT:

          INCOME TAX OFFICER
          NON CORP. WARD (1), KOCHI - 682 018.


OTHER PRESENT:

          SRI. CHRISTOPHER ABRAHAM (SC)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 23704 OF 2022             2



                            JUDGMENT

The petitioner has approached this Court being

aggrieved by Ext.P5 order issued under Section 148 A of the

Income Tax Act. The brief facts of the case are that the

petitioner is a non-resident Indian. During the assessment

year 2015-2016, the petitioner purchased an immovable

property in Tuticorin, Tamil Nadu for a total consideration of

Rs.1.82 crores. Owing to the provisions contained in the

Tamil Nadu Stamp (Prevention of under valuation of

instruments) Act 1968, the value of the property for the

purposes of determination of stamp duty was taken to be

Rs.2.29 crores. On the basis of information received by the

department, a notice was issued to the petitioner on finding

that the petitioner had not filed his return of income for the

relevant assessment year. The petitioner filed a reply to the

notice pointing out that he was a non-resident Indian and was

therefore not required to furnish his return of Income under

the provisions of the Income Tax Act. He stated that the

actual consideration for the purchase of property was Rs.1.82

crores and the amount of Rs.2.29 crores only represented the

value considered for the purposes of determining the stamp

duty payable. He submitted that there is no escapement of

income warranting the initiation of proceedings under

Section 148.

2. The learned counsel appearing of the petitioner

states with reference to the pleadings and the grounds raised

in the writ petition that the difference in the stamp duty

cannot be treated as income in the hands of the petitioner

and therefore the proceedings under Section 148 of the

Income Tax Act are illegal. It is submitted that the

proceedings are therefore without jurisdiction and are liable

to be quashed under Article 226 of the Constitution of India.

3. The learned Standing Counsel appearing for the

respondent department would very fairly state that the

provisions of Section 56(2)(x) of the Income Tax Act as they

now stand were not applicable for the assessment year 2015-

2016 and in that view of the matter the difference in the

actual consideration paid and the amount of stamp duty

shown for the purposes of valuation cannot be taxed in the

hands of the petitioner for the assessment year 2015-2016.

4. Having heard the learned counsel for the petitioner

and the learned Standing Counsel for the department, I am of

the view that Ext.P5 proceedings and consequently Ext.P6

notice under Section 148 of the Income Tax Act cannot be

sustained for the reason that there cannot be any escapement

of income warranting excise of power under Section 148 for

the assessment year 2015-2016, especially since the

provisions of Section 56(2)(x) of the Income Tax Act as they

now stand were not applicable for the assessment year 2015-

2016. This writ petition is therefore allowed and Exts.P5 and

P6 will stand quashed.

Sd/-

GOPINATH P.

JUDGE ats

APPENDIX OF WP(C) 23704/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE NOTICE DATED 31/03/2022 PASSED BY THE RESPONDENT FOR THE A.Y.2015-16.

Exhibit P2 TRUE COPY OF THE LETTER DATED 18/04/2022 SUBMITTED BY THE PETITIONER.

Exhibit P3 TRUE OF LETTER DATED 19/4/2022 ISSUED BY THE RESPONDENT.

Exhibit P4 TRUE COPY OF THE REPLY DATED 25/04/2022 SUBMITTED BY THE PETITIONER ALONG WITH ACKNOWLEDGMENT.

Exhibit P5 TRUE COPY OF THE ORDER DATED 06/05/2022 ISSUED BY THE RESPONDENT.

Exhibit P6 TRUE COPY OF THE NOTICE UNDER SEC.148 A DATED 06/05/2022 PASSED BY THE RESPONDENT.

RESPONDENTS' EXHIBITS: NIL