IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 WP(C).No. 17897 of 2009(F) ---------------------------------------- PETITIONER(S): ----------------------- 1. ANTO NITTO, SON AND LEGAL HEIR OF LATE K.J. COLUMBUS, KALAPPURAKKAL HOUSE, EDACOCHIN, COCHIN-682 006. 2. ARUN COLUMBUS, S/O. ANTONITTO, KALAPPURAKKAL HOUSE, EDACOCHIN, COCHIN-682 006. 3. ANUPAMA JOHN, D/O. ANTONITTO, KALAPPURAKKAL HOUSE, EDACOCHIN, COCHIN-682 006. BY ADV. SRI.RAJU JOSEPH RESPONDENT(S): ------------------------- 1. THE CHIEF COMMISSIONER OF INCOME TAX, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-18. 2. THE COMMISSIONER OF INCOME TAX, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-18. 3. THE CENTRAL BOARD OF DIRECT TAXES, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI. 4. THE TAX RECOVERY OFFICER, RANGE I, C.R.BUILDING, I.S.PRESS ROAD, COCHIN-18. R1 & R2 BY ADV. SRI.JOSE JOSEPH, SC FOR INCOME TAX. R4 BY GOVT. PLEADER MR.SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2010, THE COURT ON 22/10/2010 DELIVERED THE FOLLOWING: WP(C).No. 17897 of 2009(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE DATED 22/06/2009 PUBLISHED IN THE MALAYALA MANORAMA DAILY. EXT.P1(a): COPY OF THE LETTER DATED 22/06/2009 ISSUED BY THE 4TH RESPONDENT. EXT.P1(b): COPY OF THE SALE PROCLAMATION DATED 06/01/2009. EXT.P2: COPY OF THE ORDER IN WRIT APPEAL 275/2009 DATED 05/02/2009. EXT.P3: COPY OF THE PETITION DATED 06/10/2008. EXT.P4: COPY OF THE LETTER OF THE 3RD RESPONDENT DATED 12/03/2009. EXT.P5: COPY OF THE PETITION DATED 14/03/2009. EXT.P6: COPY OF THE LETTER OF THE 4TH RESPONDENT DATED 27/03/2009. EXT.P7: COPY OF THE PETITION DATED 01/04/2009. EXT.P8: COPY OF THE LETTER OF THE ASSESSING OFFICER DATED 09/06/2009. EXT.P9: COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 09/06/2009. EXT.P10: COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 17/06/2009. EXT.P11: COPY OF THE PETITION DATED 17/06/2009 TO THE 1ST RESPONDENT. EXT.P12: COPY OF THE PETITION DATED 22/06/2009 TO THE 3RD RESPONDENT. EXT.P13: COPY OF THE JUDGMENT IN O.P. NO. 19909/2002 DATED 01/02/2006. EXT.P14: COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 13/09/2002 IN THE CASE OF M/S.OCEAN FISHERIES. EXT.P14(a): COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 13/09/2002 IN THE CASE OF LATE K.J. COLUMBUS. EXT.P15: COPY OF THE LETTER OF THE 4TH RESPONDENT DATED 25/10/2002. RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF THE INTERIM ORDER OF THIS HONOURABLE COURT IN WP(C) NO. 15965/2008 DATED 04/09/2008. WP(C).No. 17897 of 2009(F) EXT.R4(B): COPY OF THE PROCEEDINGS OF THE TRO DATED 27/03/2009. EXT.R4(C): COPY OF THE PROCEEDINGS OF THE CHIEF COMMISSIONER OF INCOME TAX DATED 17/06/2009. EXT.R4(D): COPY OF THE ORDER OF THE CHIEF COMMISSIONER OF INCOME TAX DATED 17/06/2009. EXT.R4(E): COPY OF THE REPORT PUBLISHED IN THE MALAYALA MANORAMA DATED 28/06/2009. R4(E) (IN I.A.7705/2010: COPY OF THE JUDGMENT IN O.P. NO. 4511/1995 DATED 06/10/1998. EXT.R4(F): COPY OF THE INTERIM ORDER IN O.P. NO. 19909/2002 DATED 29/07/2002. EXT.R4(G): COPY OF THE JUDGMENT IN O.P. NO. 19909/2002 DATED 01/02/2006. EXT.R4(H): COPY OF THE LETTER DATED 29/10/2008 OF THE COCHIN CORPORATION. //TRUE COPY// P.S. TO JUDGE rs. P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 17897 OF 2009 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 22nd day of October, 2010 JUDGMENT This Writ Petition was heard by this Court on 30.07.2010 and pursuant to the I.A. No. 14611 of 2010, the matter was taken up and finally heard today; including on the relief sought for in the I.A.. 2. The sequence of events as narrated in the Writ Petition shows that the petitioners are aggrieved of the steps pursued by the respondents for realization of the income tax arrears of M/s Ocean Fisheries and late K.J. Columbus for the assessment years 1974 -'75 to 1978 - '79, 1980 - '81 and 1982 - '83 and also in respect of interest under Section 220 (2) of the said Act. The first petitioner was a partner of firm M/s Ocean Fisheries and his deceased father K.J. Columbus was the managing partner of the firm. There was also another partner by name Joseph Joppan. In the course of the steps taken by the department for realization of the amount stated as due, the petitioners were served with a notice dated 06.01.2009, when they approached this Court by filing W.P.(C) No. 3319 of 2009, challenging the same. After considering the merits involved, the said Writ Petition was dismissed on 30.02.2009, however holding that the said judgment would W.P. (C) No. 17897 of 2009 2 not stand in the way of the authorities concerned, to take a decision on the representation dated 06.10.2008 preferred by the petitioner under Section 119 of the I.T. Act ( Ext. P5 therein, which is marked as Ext. P3 in the present Writ Petition). Against the said verdict, Writ Appeal No. 275 of 2009 was preferred by the petitioners, wherein an interim order was passed as borne by Ext. P2, directing the petitioners to satisfy a portion of the liability as specified therein to have the representation considered. The said Writ Appeal was finally disposed of as per judgment dated 30.03.2009, directing the Commissioner, Income Tax, Kochi to consider and dispose of the petition for reconciliation dated 14.09.2009 preferred by the petitioners/appellants within two months as specified. 3. The petitioners were being repeatedly required by the concerned authorities to satisfy the amounts, as ordered by this Court earlier. The correctness and sustainability of the figures mentioned were sought to be challenged by filing various representations and several communications followed in between. The main grievance projected by the petitioners was that, the petitioners were earlier given the benefit of 'waiver' of interest to an extent of 60 % as ordered by the 3rd respondent as early as in the year 2002, which was subsequently sought to be denied, when the proceedings were finalized thereafter. In was in the said circumstances that the petitioners preferred yet another petition before the concerned authorities, W.P. (C) No. 17897 of 2009 3 which culminated in denying the benefit of waiver by Ext. P9 dated 09.06.2009. The petitioners pursued the matter further and the position was let known to them by the first respondent as per Ext. P10 communication dated 17.06.2009. It is contended that, some other grievances were also projected from the part of the petitioners on the date of hearing and that Ext. P10 order was passed on 17.06.2009, without properly appreciating the facts projected in the Ext. P11 representation. It is also stated that, since the matter has not been effectively dealt with by the first respondent while passing Ext. P10, the grievance of the petitioners has been projected again by filing Ext. P12, which is stated as pending before the 3rd respondent. It is in the meanwhile, that further proceedings were taken, notifying the sale of the property as per Ext. P1, which hence was sought to be intercepted by filing the above Writ Petition. 4. When the matter was came up for consideration before this Court on 26.06.2009, the sale was permitted to be proceeded with, however making it clear that 'confirmation of sale' shall be subject to further orders to be obtained from this Court. It is brought to the notice of this Court that, since there were no bidders, the department itself bid the property for a Rs. 95.71 lakhs. The respondents have filed a statement asserting the facts and figures with reference to the sequence of events, contending that the attempt being made from the part of the petitioners is only to protract the W.P. (C) No. 17897 of 2009 4 proceedings and there is absolutely no merit or bonafides in the Writ Petition. 5. The petitioners have filed reply affidavit, followed by a rejointer filed by the 4th respondent, producing copies of the relevant documents. 6. The learned standing counsel appearing for the respondents submits, with reference to the prayers contained (seeking for a direction to dispose of Exts. P11 and P2) that Ext. P11 representation has already been considered ,passing Ext. R4 (d) order dated 26.06.2009 and that only Ext. P12 is pending consideration before the 3rd respondent. 7. Going by the contents of the reply affidavit filed by the petitioners, several new averments have been raised therein, particularly as to the 'limitation' and such other aspects; which do not find a place in the Writ Petition. As such, this Court does not propose to go into the merits of the said contentions in the reply affidavit, when the pleadings and prayers in the Writ Petition stand unamended, but for examining the merits of the Writ Petition as it stands. 8. With regard to the contents of the I.A. now filed by the petitioners (I.A. No. 14841 of 2010), Mr. Raju Joseph, the learned senior counsel appearing for the petitioners submits that the petitioners are ready and willing to satisfy the entire liability for the time being, subject to the final outcome of the relevant proceedings and seek for a direction to reconvey W.P. (C) No. 17897 of 2009 5 the property to the petitioners. 9. The respondents have filed a 'statement' dated 21.10.10 in the said I.A., stating that the property happened to be bid in favour of the department on 30.06.09 for Rs. 95.70 lakhs, subject to the interim order dated 26.06.2009 passed by this Court with regard to the sale. Taking note of the fact that the sale was permitted to be proceeded, subject to further orders with regard to the confirmation of sale, as made clear in the interim order dated 26.06.2010, the petitioners have come forward stating that they are ready to discharge the entire liability as on date, subject to final outcome. On considering the grievance projected from the part of the petitioners, this Court finds that the sale effected on 30.06.2009 could be set aside on clearing the entire liability to the department as on date and satisfaction of the liability as above could be subject to the final orders to be passed by the third respondent in Ext. P12, which is stated as pending before the said respondent. 10. In the above facts and circumstances, the 4th respondent is directed to intimate the petitioners as to the actual liability due from the petitioners as on date, within 'one week' from today, on which event, it will be open for the petitioners to satisfy the said liability, subject to the orders to be passed by the 3rd respondent in Ext. P12. On satisfying the liability as above, the property shall released and reconveyed to the petitioners W.P. (C) No. 17897 of 2009 6 forthwith at their cost and it will be open for the petitioners to deal with the properties free from any encumbrances to the Department. 11. The third respondent is directed to consider Ext. P12 and pass final orders thereon, in accordance with law, after giving an opportunity of hearing to the petitioners, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. The petitioners shall produce a copy of this judgment along with a copy of Ext. P12 before the third respondent for further steps in this regard. I.A. No. 14611 of 2010 In view of the finalization of the Writ Petition as above, no separate orders are necessary in the I.A. Hence it is closed. P. R. RAMACHANDRA MENON, JUDGE kmd