IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WA.No. 1059 of 2009() -------------------------------- AGAINST THE JUDGEMENT/ORDER IN OP.6635/1999 Dated 19/02/2009 .................... APPELLANT(S): PETITIONER ------------------------ MINI MUTHOOTTU MUTUAL FUNDS LTD., P.B.NO.8,MUTHOOTTU BUILDINGS, KOZHENCHERRY, PATHANAMTHITA DISTRICT, REP.BY MANAGING DIRECTOR ROY.M.MATHEW. BY ADV. MR.P.GOPINATH RESPONDENT(S): RESPONDENT ------------------------- THE COMMISSIONER OF INCOME TAX (CENTRAL- 1)108-UTHAMAR GANDHI SALAI,CEHNNAI-34 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- WA NO.1059 OF 2009 -------------------------------------------------- Dated 2nd June 2009 Judgment RAMAN, J. The appellant is an assessee under the Income Tax Act. Ext.P1 is the assessment order. The appeal was pending before the appellate tribunal against the said order. When Kar Vivad Samadhan Scheme 1998 was introduced, he filed a declaration, claiming the benefit under the scheme as evidenced by Ext.P2 copy of the application filed on 24.12.1998. The benefit he claimed was for an amount of Rs.26,82,606/- being the interest due from him as per Ext.P1 order of assessment. Considering his application and granting him some benefit, Ext.P3 order was passed on 05.02.1999. Under Ext.P3, the petitioner was found entitled to 50% on Rs.12,29,969/- which figure was arrived at by adjustment of the refund of Rs.22 lakhs due to him in respect of the subsequent assessment years. The adjustment shown was made under Section 245 of the Income Tax Act by orders dated 7.8.1998. Aggrieved by those orders, the petitioner preferred a WA 1059/09 2 revision as per Ext.P4 on 26.11.1998. It was at that time, when the revision was pending, that it filed an OP before this court challenging both the adjustment of the refund due to him under S.245 as also Ext.P3 oder. Needless to say that the petitioner having invoked the revisional remedy simultaneously he could not have proceeded to claim any relief in the writ petition as he is precluded from invoking two parallel proceedings. The petitioner did not withdraw the revision so as to claim any benefits in the writ petition against Ext.P5. So, however, the learned single Judge considered the order passed under S.245 of the Income Tax Act and held that for want of notice as mandated by that section, the order would have been bad, but did not grant him any relief on the ground that since the adjustment itself was made the subject matter of revision under S.264 of the Income Tax Act, which has been repelled by the revisional authority by Ext.R(b) order and he having not challenged that order, could not have raised the contention that the adjustment is bad. As a matter of fact, this observation was made possibly because by the time the judgment was delivered, the order was passed in the revision. WA 1059/09 3 2. The learned counsel for the appellant would submit the finding of the learned single Judge that the petitioner ought to have filed any revision against the order passed under S.264 of the Act as a ground/reason for refusal of the relief against the order passed under S.245 was not correct. According to him, if this court refused to consider his contentions against the order passed under S.245, for the reason that the revision was pending and therefore, he could not have canvassed the correctness of the order, impugned in this revision, then, that question should have been left open. On the other hand, if an order has since been passed by the time the writ petition was heard, then the fact that he has not challenged that order specifically by any amendment made to the writ petition is of no consequence. According to him, the correctness or otherwise f the order passed under S.245 as also the oder passed under S.264 ought to have been considered since there is no further remedy by way of appeal/revision against the revisional order passed under S.264. 3. We heard the learned counsel for the appellant as well as the learned Standing Counsel appearing for the Revenue. It is true that the order passed under S.245 was under challenge WA 1059/09 4 before the revisional authority. Though the petitioner had sought for a declaration that the adjustment made is bad, the various orders passed under S.245 were not produced or sought to be quashed. That apart, when he has already invoked the statutory remedy by way of filing revision against those orders, the question of considering the correctness of the orders passed under S.245 was not open to be canvassed in the writ petition. True that S.264 order was passed during the pendency of the writ petition. At least as on that date, he could have amended the writ petition and incorporated the necessary reliefs against the order passed under S.264 by producing the same. So long as it is not done, the question of considering the correctness or otherwise of the order passed under S.245 and 264 did not actually arise for consideration. Therefore, we leave open the right of the appellant to take recourse to such remedies available to him under law against the orders passed under S.245 as affirmed in revision under S.264. 4. Now, coming to the challenge made to the order passed under the Kar Vivad Samadhan Scheme, so long as the contention regarding the validity of an order under S.264 is not WA 1059/09 5 the subject matter of challenge in this writ petition, the only question is to consider whether Ext.P3 in such circumstances could be said to be vitiated for any reason. As could be seen, the whole argument against Ext.P3 rested on the contention against the order under S.245 in the air. So long as there are no independent grounds urged against the challenge made against Ext.P3, we find no reason to interfere with the order of the learned single Judge. The Writ Appeal is devoid of any merit and it is accordingly dismissed. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta WA 1059/09 6