IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WP(C).No. 16414 of 2010(B) ---------------------------------------- PETITIONER(S): ------------------------ K. AVARA HAJEE, KATTUKANDAN HOUSE, KULUKILIYAD.P.O., KOTTAPPURAM, PALAKKAD DIST. BY ADV. SRI.C.K.RAMAKRISHNAN RESPONDENT(S): -------------------------- 1. THE COMMISSIONER OF INCOME TAX, KOCHI. 2. INCOME TAX OFFICER, WARD-2, PALAKKAD. 3. ADDITIONAL COMMISSIONER OF INCOME TAX, PALAKKAD RANGE, PALAKKAD. 4. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,THIRUVANANTHAPURAM. R1 TO R3 BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX. R4 BY GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NO. 16414 OF 2010 -------------------------------------------- Dated this the 12th day of July, 2010 JUDGMENT The petitioner is challenging the correctness and sustainability of Ext.P2 notice demanding a sum of Rs.3,51,794/- in respect of the assessment year 1999-2000 and Rs.3,855/- in respect of the assessment year 2005-06. Various contentions have been raised, particularly placing reliance on Ext.P3 order passed by the Commissioner of Income Tax (Appeals-V), whereby an observation has been made in paragraph 5 that, the original assessment was an ex-parte order under Section 144 estimating the income of the petitioner/appellant and accordingly holding that the penalty proceedings were not correct or sustainable, which accordingly were cancelled vide Ext.P3. The learned counsel submits that, there is absolutely no rhyme or reason for demanding the amount as shown in Ext.P2, even after cancellation of the penalty vide Ext.P3 and hence is under challenge. 2. The learned standing counsel for the department, with reference to the statement filed submits that, the idea and understanding of the petitioner is quite wrong and misconceived. It is brought to the notice of this Court that, the cancellation effected by virtue of Ext.P3 is only in respect of the ‘penalty’ levied under Section 271 (i) (c) of the 2 WP(C) No. 16414/2010 Income Tax Act and is not with regard to the ‘tax’ element. The amount sought to be satisfied vide Ext.P2 is in respect of the ‘tax’ payable by the petitioner for the concerned assessment years. The learned standing counsel also submits that, being aggrieved of the original assessment order dated 11.02.2004, in respect of the assessment year 1999-00, the petitioner had approached the Commissioner by filing a Revision Petition under Section 264; which however was rejected as per order dated 10.02.2005. The impugned proceedings were subject to further challenge by filing statutory appeal, which however did not turn to be fruitful to the full extent, as the said appeal was allowed only in part, as per order dated 21.12.2006. 3. By virtue of the order passed by the appellate authority, the original tax liability to an extent of Rs.9,35,624/- was brought down to just ‘1/3rd’ of Rs.3,51,794/-. The petitioner did not choose to file any further appeal before the Tribunal and as such, the appellate order passed on 21.12.2006 by the statutory appellate authority has become final. This being the position, the petitioner cannot vaguely or indirectly club the two different cause of actions together and contend that no amount is liable to be paid by the petitioner and as such, no interference is warranted, submits the learned counsel. 3 WP(C) No. 16414/2010 4. This Court finds considerable force in the said submission. There is no case for the petitioner that, the petitioner has challenged fixation of tax liability, after the disposal of the statutory appeal on 21.12.2006, by resorting any procedure known to law and this being the position, the challenge raised against Ext.P2 does not stand the test of law. More so, when the respondent has asserted in the statement, that the amount sought to be recovered from the petitioner is ‘not penalty’ but the ‘tax’ element. With regard to the amount demanded in respect of the assessment year 2005-06, it is only a sum of Rs.3,855/-. With regard to this extent as well, there is no such challenge raised in the Writ Petition. Accordingly, interference is declined and the Writ Petition is dismissed. P.R.RAMACHANDRA MENON JUDGE dnc