Aadhitya Property Developersrepresented By Its Managing v. Additional/Joint/Deputy/Assistant Commissioner Of Income Tax, Income Tax Officer, National E-Assessment Centre, Delhi

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.04.2022 CORAM THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.P.NOS.9200 & 9206 OF 2022 AND W.M.P.NOS.8955, 8956, 8963 & 8965 OF 2022 Aadhitya Property DevelopersRepresented by its Managing Partner Mr.K.Balakrishnan75, Collector Sivakumar Street, K.K.Pudur,Coimbatore – 641 038, Tamil Nadu,India. ... Petitioner in both WPs Vs 1. Additional/Joint/Deputy/Assistant Commissioner of Income Tax, Income Tax Officer, National e-Assessment Centre, Delhi. 2. The Income Tax Officer, Non Corp Ward 3(2), Coimbatore. ... Respondents in both WPs Prayer in WP.No.9200 of 2022 : Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a Writ of Certiorarified mandamusto call for the records on the file of the first respondent andquash the impugned order in PAN dated 24.02.2022 inDIN ITBA/PNL/F/270A/ 2021-22/1040082045(1) passed by the firstrespondent under Section 270A of the Income Tax Act, 1961 forthe assessment year 2017-18 and direct the first respondent tokeep the penalty proceeding initiated under Section 270A of theAct in abeyance until disposal of the quantum appeal filed bythe petitioner under Section 246A of the Act on 06.12.2021 inacknowledgment number 987662850061221 against the assessmentorder dated 27.09.2021 under Section 143(3) read with Section147 read with Section 144B of the Act. Prayer in WP.No.9206 of 2022 : Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified mandamusto call for the records on the file of the first respondent andquash the impugned order in PAN dated 21.02.2022 inDIN ITBA/PNL/F/271AAC(1)/2021-22/1039970399(1) passed by thefirst respondent under Section 271AAC(1) of the Income Tax Act,1961 for the assessment year 2017-18 and direct the firstrespondent to keep the penalty proceeding initiated underSection 271AAC(1) of the Act in abeyance until disposal of thequantum appeal filed by the petitioner under Section 246A of theAct on 06.12.2021 in acknowledgment number 987662850061221against the assessment order dated 27.09.2021 under Section 143(3) read with Section 147 read with Section 144B of the Act. COMMON ORDER The petitioner is an assessee under the respondents. For theassessment year 2017-18 after completing the assessment underSection 147 read with Section 144B of the Income Tax Act, 1961(in short 'the Act'), assessment order was passed on 27.09.2021. 2. As against the said assessment order, though belatedlydue to Covid-19 situation, the petitioner assessee filed appealbefore the Appellate Authority on 24.02.2022. Since there is adelay in filing the appeal, delay condonation is yet to becompleted, however it is the fact that, the appeal though filedbelatedly, it is pending before the Appellate Authority as ondate. 3. In the meanwhile, pursuant to the assessment order, theRevenue initiated penalty proceedings under two provisions ofthe Act, viz., Section 270A and 271AAC separately. Thoseproceedings came to an end, under which, penalty oder underSection 270A of the Act was issued on 24.02.2022. Like that,penalty order under Section 271AAC was also issued against thepetitioner assessee on 21.02.2022. Challenging these penaltyorders, these writ petitions have been filed. 4. Heard Mr.N.V.Narayanan, learned counsel appearing for thepetitioner, who would submit that, since appeal has been filedagainst the very assessment order before the AppellateAuthority, where, the appeal is still pending, before which, ifthe penalty proceedings concluded in the impugned orders aregiven effect to, that would greatly prejudice the interest of the petitioner as that would make indirectly otiose the appealproceedings pending before the Appellate Authority against theassessment order, therefore, the learned counsel seeksindulgence of this Court against the impugned penaltyproceedings. 4. Heard Mr.N.V.Narayanan, learned counsel appearing for thepetitioner, who would submit that, since appeal has been filedagainst the very assessment order before the AppellateAuthority, where, the appeal is still pending, before which, ifthe penalty proceedings concluded in the impugned orders aregiven effect to, that would greatly prejudice the interest of the petitioner as that would make indirectly otiose the appealproceedings pending before the Appellate Authority against theassessment order, therefore, the learned counsel seeksindulgence of this Court against the impugned penaltyproceedings. 5. Heard Mr.A.N.R.Jaya Pratap, learned Standing Counsel forthe respondents, who would submit that, as against theassessment order dated 27.09.2021, appeal should have been filedin time, but admittedly this appeal has been filed only on06.12.2021. Therefore, there is a delay in filing the appealwhich is yet to be condoned, hence, at this juncture, since theRevenue is not prevented or precluded from proceeding againstthe petitioner assessee, to impose penalty under Section 270A aswell as 271AAC, those proceedings since have already beeninitiated were concluded and therefore, these impugnedproceedings cannot be said to be unlawful or infirm, hence, nointerference is required, he submitted. 6. I have considered the said rival submissions made by thelearned counsel appearing for the parties and have perused thematerials placed before this Court. 7. As has been rightly pointed out by the learned counselfor the petitioner assessee, against the assessment order dated27.09.2021, regular appeal has been filed before theCommissioner (Appeals) or Appellate Authority though belatedlydue to Covid-19 situation and the said appeal including thecondone delay petition seems to be pending before the AppellateAuthority. 8. When that being so, if these penalty proceedings whichare concluded in the impugned orders in both the writ petitionsare permitted to be executed, certainly that will prejudice theinterest of the petitioner as the main issue with regard to thequantum made in the assessment order dated 27.09.2021 itself isthe subject matter before the Appellate Authority, hence thesepenalty proceedings can await for sometime till the decision istaken by the Appellate Authority in the appeal. 9. In that view of the matter, this Court is inclined todispose of these writ petitions with the following orders:(i) That the impugned proceedings shall be kept inabeyance till a decision is taken by the AppellateAuthority in the appeal filed by the petitioner dated06.12.2021 against the order of assessment dated27.09.2021. It is needless to mention that, once adecision has come from the Appellate Authoritydepending upon the outcome of the same, the further course of action with regard to the impugned ordersi.e., the penalty proceedings can be decided by theRevenue.(ii) The Appellate Authority is hereby directed totake up the appeal including the condone delay petitionand decide the same as early as possible preferablywithin six months from the date of receipt of a copy ofthis order. 10. With these directions, both the Writ Petitions aredisposed of. No costs. Consequently, connected miscellaneouspetitions are closed. Assistant Registrar //True Copy// Sub Assistant Registrar Sgl To 1. Additional/Joint/Deputy/Assistant Commissioner of Income Tax, Income Tax Officer, National e-Assessment Centre, Delhi. 2. The Income Tax Officer, Non Corp Ward 3(2),Coimbatore. +2ccs to Mr.A.P.Srinivas, SSC for IT S.R.No.25794 RK(CO)PM/19/07/2022