Co-Operative Bank v. Sri.jose Joseph, On The Other Hand, Defendedext P4 Order And Submitted That The Petitioner Has Analternative Statutory Remedy, By Filing A Second Appeal

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 8 DAY OF AUGUST 2023 / 17TH SRAVANA, 1945 WP(C) NO. 26015 OF 2023 PETITIONER: KERALA STATE SERVICE PENSIONERS CO-OPERATIVE SOCIETY LTD, SUNNY JUNCTION BUILDING, CHALAKKUDY, THRISSUR-REPRESENTED BY ITS SECRETARY, PIN – 680307 BY ADVS.C.A.JOJOSWATHY S. RESPONDENTS: 1THE INCOME TAX OFFICER WARD-2(1), AYAKAR BHAVAN, NEAR SAKTHAN STAND, THRISSUR, PIN – 680001 2THE COMMISSIONER OF INCOME TAX (APPEALS)AYAKAR BHAVAN, NEAR SAKTHAN STAND, THRISSUR, PIN – 680901 3THE COMMISSIONER OF INCOME TAX (APPEALS)NEW DELHI, PIN – 110001 NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, OTHER PRESENT: SRI JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON08.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Dated this the 8[th] day of August,2023 J U D G M E N T The writ petition is filed assailing Ext P4 orderpassed by the third respondent dismissing the appealfiled by the petitioner for non-prosecution. 2.The petitioner’s case is that, it is theCo-operative Society of retired employees. Thepetitioner had filed annual return on 29.10.2015,declaring a total income of Rs.20,570/-. The petitionerwas ignorant that it had to show the income providingcredit facility to its members. Later, the petitionerfurnished all the requisite details to the firstrespondent. The petitioner was assessed, for theassessment year, 2015-16 for an amount ofRs.11,75,409/- at a high pitched rate, without givingbenefit of Sections 80P & 40A(3) of the Income TaxAct, 1961. The petitioner had challenged the order through a statutory appeal before the secondrespondent. The appeal was taken up for considerationby the third respondent. Although notice was sent bye-mail to the petitioner, as per the version of the thirdrespondent, the petitioner’s e-mail was not operationalfor a long time. Hence, the petitioner could not submitits argument notes before the appellate authority. Thethird respondent, without considering the matter onmerits, by the impugned Ext P4 order, has rejected theappeal for non-prosecution. Ext P4 clearly reveals thatthe third respondent has not considered any of thecontentions raised by the petitioner, which is inviolation of the law laid down by the Hon'ble SupremeCourt inBalaji Steel Re-Rolling Mills v.Commissioner of Central Excise and Customs[2015 AIR SCW 426]. The entire proceedings leading -:4:- to Ext P4 is vitiated and unsustainable in law. Hence,the writ petition. 3.Heard; Sri. C.A.Jojo, the learned counselappearing for the petitioners and Sri.Jose Joseph, thelearned standing counsel appearing for therespondents. 4. Sri. C.A.Jojo, placed reliance on the decisionof the Division Bench of this Court in Uzhuva Service Co-operative Bank v. Income Tax Officer& Ors.[W.A.No.1257/2020] to fortify his contention that theAppellate Tribunal shall not be dismiss an appeal fornon-prosecution and is obliged to consider the matteron its merits. Thus, according to him, Ext P4 is bad inthe eyes of law and is liable to be set aside. 5.Sri.Jose Joseph, on the other hand, defendedExt P4 order and submitted that the petitioner has analternative statutory remedy, by filing a Second Appeal Sri.Jose Joseph, on the other hand, defended before the next forum. Hence, this Court may notentertain the writ petition. 6.be interfered by this Court. The short point is whether Ext P4 order is to 7.A reading of Ext P4 order reveals that theAppellate Tribunal has not considered the matter onmerits, instead has dismissed the appeal for default, onthe finding that, despite multiple opportunities beingafforded by the petitioner with hearing dates on13.01.2021, 12.04.2023 & 22.05.2023, the petitionerhas not availed the benefit. 5.Sri.Jose Joseph, on the other hand, defendedExt P4 order and submitted that the petitioner has analternative statutory remedy, by filing a Second Appeal Sri.Jose Joseph, on the other hand, defended before the next forum. Hence, this Court may notentertain the writ petition. 6.be interfered by this Court. The short point is whether Ext P4 order is to 7.A reading of Ext P4 order reveals that theAppellate Tribunal has not considered the matter onmerits, instead has dismissed the appeal for default, onthe finding that, despite multiple opportunities beingafforded by the petitioner with hearing dates on13.01.2021, 12.04.2023 & 22.05.2023, the petitionerhas not availed the benefit. 8.The Division Bench of this Court in UzhuvaService Co-operative Bank (supra), after referring tothe decision of the Hon'ble Supreme Court in BalajiSteel Re-Rolling Mills (supra) has categorically laiddown the law that the Appellate Tribunal shall not dismiss an appeal for non-prosecution, instead has todecide the matter on its merits. 9.On an overall appreciation of the pleadingsand materials on record, I am of the definite view thatExt P4 order is passed against the principles laid downin Uzhuva Service Co-operative Bank (supra) and ishence liable to be quashed. At the same time, I makeit clear that the petitioner has to be more vigilant inverifying its e-mail address and take note of the datefixed by the third respondent for hearing of Ext P3appeal. Resultantly, in exercise of the plenary powers of this Court under Article 226 of the Constitution ofIndia, I order the writ petition as follows: (i)Ext P4 order is set aside. (ii) The third respondent is directed to re-considerExt P3 appeal in accordance with law and on W.P.(C)No.26015/2023 -:7:- its merits, after affording the petitioner anopportunity of being heard. (iii) The third respondent shall send an e-mail tothe registered e-mail of the petitioner fixing thedate of hearing of Ext P3 appeal.the registered e-mail of the petitioner fixing thedate of hearing of Ext P3 appeal. (iv) It would be up to the petitioner to verify thenotice sent by the third respondent and beready for arguments on the date fixed by thethird respondent.notice sent by the third respondent and beready for arguments on the date fixed by thethird respondent. (v) Until such time orders are passed on Ext P3, allfurther proceedings pursuant to Ext P5 noticeshall stand deferred.further proceedings pursuant to Ext P5 noticeshall stand deferred. Sd/- C.S.DIAS,JUDGE DST/08.08.23 //True copy//P.A.To Judge W.P.(C)No.26015/2023 -:8:- APPENDIX PETITIONER EXHIBITSEXHIBIT P1 A TRUE COPY OF THE ASSESSMENT ORDER DATED08-09-2017 ISSUED BY THE 1STRESPONDENT EXHIBIT P2 A TRUE COPY OF THE DEMAND NOTICE DATED 08-09-2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT P3A TRUE COPY OF THE APPEAL FOR AY 2015-16DATED 07-10-2017 FILED BEFORE THE 2NDRESPONDENT EXHIBIT P4A TRUE COPY OF THE APPELLATE ORDER U/S 250FOR AY 2015-16 DATED 29-05-2023 ISSUED BYTHE 3RD RESPONDENT EXHIBIT P5A TRUE COPY OF THE DEMAND NOTICE DATED07.07.2023 ISSUED BY THE 1ST RESPONDENT RESPONDENTS’ EXHIBITS: NIL