IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 9650 of 2005(W) -------------------------------------- PETITIONER(S): ----------------------- THE KONDOTTY P.C.C. AGRICULTURAL MARKETING & PROCESSING CO-OPERATIVE SOCIETY LTD., KONDOTTY P.O., MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY, P.ALI. BY ADV. SRI.C.KOCHUNNY NAIR, SRI.S.ARUN RAJ, SMT.C.T.SUJA. RESPONDENT(S): -------------------------- 1. ASST. COMMISSIONER OF INCOME TAX, TIRUR. 2. JOINT COMMISSIONER OF INCOME TAX (SPECIAL RANGE), ASSESSMENT, CALICUT. 3. JOINT COMMISSIONER OF INCOME TAX, RANGE-3, CALICUT. 4. TAX RECOVERY OFFICER, TIRUR. BY ADV. SRI.GEORGE K. GEORGE, SC FOR IT. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 9650 of 2005(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ASSESSMENT ORDER DATED 27/02/1998 PASSED BY THE 1ST RESPONDENT FOR THE YEAR 1995-96. EXT.P2 COPY OF THE ORDER DATED 27/11/2000 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), CALICUT. EXT.P3 COPY OF THE GIVING EFFECT ORDER DATED 25/01/2001 PASSED BY THE 2ND RESPONDENT. EXT.P4 COPY OF THE LETTER DATED 15/12/2004 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P5 COPY OF THE NOTICE DATED 06/01/2005 ISSUED UNDER 226(3) OF THE ACT TO ONE OF ITS TENANTS. EXT.P6 COPY OF THE CERTIFICATE DATED 19/01/2005 ISSUED UNDER SECTION 222 OR 223 OF THE ACT BY THE 4TH RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs A.M.SHAFFIQUE, J * * * * * * * * * * * * * W.P.C.No.9650 of 2005 ---------------------------------------- Dated this the 3rd day of December 2011 J U D G M E N T This writ petition is filed challenging Ext.P3 which is an order passed by the Joint Commissioner of Income Tax (Special Range), Calicut modifying the assessment in accordance with the order of C.I.T (Appeals) dated 27/11/2000. In Ext.P3, the authority had also included tax payable on long term capital gains. According to the petitioner, by virtue of Ext.P2 order, the Commissioner of Income Tax (A), Calicut had set aside the decision regarding assessment of working capital gain and had further directed the Assessment Officer to re-examine and verify the appellant's submissions and take the proper value of the land as on 01/04/1981. It is without reference to Ext.P2 order, that Ext.P3 is issued, and it is in pursuance of Ext.P3, that Exts.P4, P5 and P6 demands were made. 2. Having heard the learned counsels on either side, I am of the view that a demand for capital gains can be made only after finalising the assessment, as per directions in Ext.P2. In W.P.C.NO.9650/2005 2 that view, Ext.P3 to the extent of assessment of income from capital gains is liable to be set aside and consequently Exts.P4, P5 and P6 also stand set aside. 3. It is submitted by the learned counsel for the department that they have already filed an appeal against Ext.P2 which is pending before the Tribunal. 4. In the above circumstances, the writ petition is allowed. There will be a direction to the 2nd respondent to dispose of the applicant's assessment with reference to Ext.P2, subject to any orders passed in the appeal filed by the department, within a period of three months from the date of receiving a copy of this judgment. (A.M.SHAFFIQUE, JUDGE) jsr // True Copy// PA to Judge W.P.C.NO.9650/2005 3 W.P.C.NO.9650/2005 4 THOMAS.P.JOSEPH,J. Crl.M.C.No. of 200 ORDER 19/01/2011