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SHRI P.P. UMMERKUTTY versus THE ASSISTANT COMMISSIONER

High Court of Kerala

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SHRI P.P. UMMERKUTTY v. THE ASSISTANT COMMISSIONER - WA No. 2230 of 2002 [2005] RD-KL 122 (9 September 2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 2230 of 2002

1. SHRI P.P.UMMERKUTTY, PROPRIETOR,
... Petitioner

Vs

1. THE ASSISTANT COMMISSIONER OF
... Respondent

For Petitioner :SRI.C.KOCHUNNY NAIR

For Respondent :SRI.P.K.R.MENON(SR.),SR.COUNSEL FOR IT

The Hon'ble MR. Justice K.S.RADHAKRISHNAN The Hon'ble MR. Justice K.T.SANKARAN

Dated : 09/09/2005

O R D E R

.PL 55

K.S.RADHAKRISHNAN & K.T. SANKARAN, JJ.

j j WA. No. 2230 of 2002 j j j

Dated this the 9th day of September, 2005

j j

JUDGMENT

j j

Radhakrishnan, J.

.SP 2 ((HDR 0 WA. 2230 of 2002 -#- j )) .HE 1 Original petition was preferred by the appellant seeking a writ of certiorari to quash Ext. P4 show cause notice dated 21-5-2002 imposing penalty of Rs.18,39,420/and Rs.55,18,260/- under section 158BFA (2) of Income-tax Act, 1961 and also for a declaration that the penalty provision in subsection (2) of section 158BFA is illegal, oppressive and punitive.

2. Learned single Judge dismissed the writ petition since the assessee had already challenged the penalty proceedings before the Assistant Commissioner. Learned single Judge felt, validity of Section 158BFA also could be raised before the Commissioner, if so advised. Assessee took up the matter in appeal and obtained a stay of the proceedings. While the matter was pending before this court appellate authority has already passed final order imposing total penalty of Rs.25 lakhs. Assessee has already taken up the matter before the Tribunal and the same is pending consideration.

3. We are in this case concerned only with the legality of subsection (2) of section 158BFA of Income-tax Act and as to whether the penal provision is oppressive and violative of any of the fundamental rights guaranteed under the Constitution of India.

4. Assessee is a builder engaged in the business of construction of commercial buildings and selling or letting out of the buildings. Assessee's premises were searched under section 132(1) of the Income-tax Act, 1961 on 21-3-1997 and several incriminating documents were seized. Assessment was proceeded as per provisions under Chapter XIVB of the Income-tax Act, 1961 and a notice under section 158 BC was issued to the assessee. Assessee filed a return of income in response to this notice disclosing a sum of Rs.12 lakhs. Assessment was completed under section 158BC of the Act on 5-3-1999. Total income determined was Rs.80,69,510/- and penal action was initiated under section 158BFA(2). Assessment was contested by the assessee in appeal before the Commissioner of Income-tax (Appeals), Kozhikode and the same was disposed of by the Commissioner of Income-tax (Appeals) by order dated 23-7-1999. Department went in second appeal to the Income-tax Appellate Tribunal, Cochin Bench and the same was disposed of by the Tribunal by order dated 22-12-2001.

5. Penalty proceeding under section 158BFA(2) was initiated at a time when the assessment proceeding was on. Assessee appeared and represented his case and also filed detailed objection to the proposed penal action. Penalty proceeding under section 158BFA (2) of the Act was initiated on 5-3-1999 at the time of assessment for the block period 1-4-1986 to 21-3-1997. Assistant Commissioner of Income-tax in the show cause notice issued under section 158BFA(2) has stated as follows: .SP 1

"a) You had claimed in your wealth statement that i there was a cash balance of Rs.11,50,000/- as on 1-4-86. It has now been established and has held by the ITAT that you had only a cash balance of Rs.700000/- as on that date. The difference being the amount you claimed as available as cash balance, with an intention of evading tax payments, I propose to hold this amount as liable for penalty.

b) The interest income earned from bank deposits i which you had failed to disclose in the return filed in response to notice u/s 158BC amounting to Rs.4,43,700/- which has now been finally included in your income for the block period will attract the penal provisions u/s 158 BFA (2).

c) The amount of Rs.19,72,000/- which you had i claimed as agricultural income of your brother Dr.P.P.Abdul Ghani and has subsequently established as your own income has also not disclosed in the return filed u/s 158BC. This amount will also attract the provisions of section 158BFA(2).

d) Your income claimed as sale proceeds of gold i ornaments and restrained from disclosure in the return filed u/s 158BC which was finally decided as your income amounting to Rs.1,00,000/- attracts penal provisions of section 158BFA(2).

e) The investment in Anubhav Finance amounting to i Rs.50,00,000/- which you have failed to disclose u/s 158BC which has now been finally held as your income also attracts penal provisions u/s 158BFA(2).

f) The investment made by you in M/s. Multiscan i which you have claimed in the name of your brother Dr.P.P.Abdul Ghani amounting to Rs.50,000/- has now been established as your own investment. Since you had failed to disclose this amount u/s 158BC, this will also attract penal provisions u/s 158BFA(2)." .SP 2 According to the department the above mentioned facts would attract the provisions of subsection (2) of section 158BFA. We may in this connection extract section 158BFA (1) and (2) for easy reference. .SP 1 "158BFA.(1) Where the return of total income

i including undisclosed income for the block period, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after the 1st day of January, 1997, as required by a notice under clause (a) of section 158BC, is furnished after the expiry of the period specified in such notice, or is not furnished, the assessee shall be liable to pay simple interest at the rate of one per cent of the tax on undisclosed income, determined under clause (c) of section 158 BC, for every month or part of a month comprised in the period commencing on the day immediately following the expiry of the time specified in the notice, and--

(a) where the return is furnished after the i expiry of the time aforesaid, ending on the date of furnishing the return; or

(b) where no return has been furnished, on the i date of completion of assessment under clause (c) of section 158BC. (2) The Assessing Officer or the Commissioner i (Appeals) in the course of any proceedings under this Chapter, may direct that a person shall pay by way of penalty a sum which shall not be less than the amount of tax leviable but which shall not exceed three times the amount of tax so leviable in respect of the undisclosed income determined by the Assessing Officer under clause

(c) of section 158BC: Provided that no order imposing penalty shall be i made in respect of a person if--

(i) such person has furnished a return under i clause (a) of section 158BC; (ii) the tax payable on the basis of such return i has been paid or, if the assets seized consist of money, the assessee offers the money so seized to be adjusted against the tax payable; (iii) evidence of tax paid is furnished along i with the return; and (iv) an appeal is not filed against the i assessment of that part of income which is shown in the return: Provided further that the provisions of the i preceding proviso shall not apply where the undisclosed income determined by the Assessing Officer is in excess of the income shown in the return and in such cases the penalty shall be imposed on that portion of undisclosed income determined which is in excess of the amount of undisclosed income shown in the return." .SP 2 Counsel appearing for the assessee submitted that subsection (2) of section 158BFA which provides for penalty on heavier terms is illegal and burdensome. Counsel submitted since block assessment covers a period of 10 years income assessed the tax demanded would be on the higher side and therefore if the assessee is compelled to pay huge disproportionate penalty at triple the tax demanded the financial equilibrium of the assessee's business would be affected. So also his right to carry on free trade and business. Counsel submitted levy is wholly burdensome and oppressive and punitive. Counsel also submitted when penalty proceedings under Section 271(1)(c) can be initiated there is no justification in following Section 158BFA. Counsel submitted section 271(1)(c) does not specify that it cannot be initiated in block assessment proceedings. Further, counsel also submitted subsection (1) of section 158 BFA calls for levy of interest at the rate of 2% of the undisclosed income where the return which is called for under section 158BC is furnished after the expiry of the time specified in the notice or where no return at all has been furnished. Counsel submitted jurisdiction of subsection (2) of Section 158BFA should be limited to the territory of subsection (1) and such case that fall within subsection (1) shall only be met with punitive measures but with a lesser impact than subsection (2).

6. Counsel appearing for the revenue on the other hand, contended that there is no basis in the above mentioned contention. Counsel submitted subsection (2) of section 158BFA falls under Chapter XIVB which was inserted by Finance Act 1995. Chapter XIV-B deals with special procedure for assessment of search cases. Counsel submitted there is no illegality in levying interest and penalty in those cases which fall under Chapter XIV-B. Counsel also made reference to the decision of the Gujarat High Court in Rahimbhai Karimbhai Nagriwala v. B.B.Patel, (1974) 97 ITR 660 and also the decision of the Apex Court in Commercial Tax Officer and others v. Swastik Roadways and another, (2004) 135 STC 1 to bring home this point.

7. Chapter XIV-B consists of Sections 158B to 158BH which was inserted by Finance Act 1995 so as to provide for an assessment of the undisclosed income detected as a result of the search, and is devised to operate in the separate field of undisclosed income and in addition to the regular assessments covering previous years in the block period. We are not prepared to accept the contention of the assessee that subsection (2) of Section 158BFA is oppressive or in any way violative of any Article of the Constitution of India. There is no basis in that contention nor has he explained in the writ petition as to how Article 25 is attracted in this case.

8. Section 158BFA has been introduced in Chapter XIV-B which deals with special procedure for assessment of search cases with an object to achieve. The said provision is intended to provide an effective deterrent against evasion of tax and to put a stop to that practice which the legislature considers to be against the public interest. Merely because a penalty is provided for concealing income and also disclosing of undisclosed and unexplained investment during search conducted it cannot be said that such a provision is a piece of hostile legislation. Assuming that the provision is harsh since it is a deterrent against tax evaders we are not prepared to say that provision is expropriatory. Power to levy tax on income is vested in Parliament and power to impose penalties to vindicate that particular power of imposition of tax is also on the Parliament. Object and purpose of Section 158BFA is to provide penalty for concealment of income and providing a deterrent against tax evaders. Heavy penalty is prescribed to check tax evasion. Legislature in its wisdom felt in the matter of search cases such a penalty should be imposed, which in our view, cannot be canvassed in a writ petition under Article 226 of the Constitution of India.

9. We therefore find no infirmity in the said provision. The prayer of the petitioner to declare such provision as oppressive and violative of fundamental rights guaranteed under the Constitution cannot be sustained. We therefore repel that challenge and dismiss the writ appeal. .SP 2 .JN

K.S.RADHAKRISHNAN, JUDGE.

.SP 1

K.T. SANKARAN, JUDGE.

ksv/- .PA .SP 1 .JN ((HDR 0 )) .HE 2 K.S.RADHAKRISHNAN &

K.T.SANKARAN, J.

WA. No. 2230 of 2002

JUDGMENT

September, 2005


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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