On A Consideration Of The Rival Submissions, We Find That Another Division Bench Of This Court, In The Decision Reported In Uzhuva Service Co-Operative Bank Ltd v. W.a

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.TUESDAY, THE 4 DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 WA NO. 717 OF 2024 AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.9100 OF 2020OF HIGH COURT OF KERALA APPELLANT/PETITIONER M/S.COOL MIND TECHNOLOGIES PRIVATE LIMITEDA-5, 2ND FLOOR, TAPASYA, INFOPARK, KAKKANAD, KOCHI-682030, REPRESENTED BY ITS MANAGING DIRECTOR ABRAHAM JACOB., PIN – 682030 BY ADVS.ABRAHAM JOSEPH MARKOSV.ABRAHAM MARKOSJOHN VITHAYATHILISAAC THOMASP.G.CHANDAPILLAI ABRAHAMALEXANDER JOSEPH MARKOSSHARAD JOSEPH KODANTHARA RESPONDENT/RESPONDENT 1ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE-1(1), AAYAKAR BHAWAN, I.S. PRESS ROAD, KOCHI, PIN – 682018 2PRINCIPAL COMMISSIONER OF INCOME TAXCIRCLE-1(1), AAYAKAR BHAWAN, I.S. PRESS ROAD, KOCHI, PIN – 682018 3INCOME TAX APPELLATE TRIBUNALCOCHIN BENCH, KENDRIYA BHAVAN, KAKKANAD, KOCHI, PIN - 682037 W.A.No.717 of 2024 OTHER PRESENT: SC SRI JOSE JOSEPH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON04.06.2024, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: J U D G M E N T============ Dr. A.K.Jayasankaran Nambiar, J. This appeal is filed against the judgment dated08.02.2024 of a learned Single Judge in W.P(C)No.9100 of2020. 2. The brief facts necessary for a disposal of the appeal are as follows: The appellant is engaged in Software Development andExport of IT enabled services for which it had claimeddeduction under Section 10B as a 100% EOU. For theassessment years 2007-08 and 2008-09, the claim fordeduction was denied. In the first appeal, the appellant raisedan alternate contention for deduction under Section 10A of theIT Act, in the event, the claim under Section 10B was notallowed. This alternate ground was allowed by the FirstAppellate Authority for the assessment year 2008-09, but wasrejected by the same authority for the assessment year 2007-08. 3. Against the rejection by the First Appellate Authority,the appellant preferred an appeal before the Income TaxAppellate Tribunal. The said appeal however came to bedismissed for non prosecution. It is the case of the appellantthat he received neither the notice of hearing before theAppellate Tribunal nor the dismissal order of the AppellateTribunal. When he eventually got a copy of the said dismissalorder of the Appellate Tribunal, he preferred an application forrestoration of the appeal, but the said application was alsodismissed as belated. 4. It is impugning the said dismissal orders of theAppellate Tribunal, dismissing the appeal and themiscellaneous application, that the appellant approached thewrit court through the writ petition aforementioned. 5. The learned Single Judge who considered the matter,although noticed the provisions of Section 254 of the IncomeTax Act, read with Rule 24 of the Income Tax (AppellateTribunal) Rules, 1963, and found that the Appellate Tribunalwas statutorily obliged to consider the appeal on merits, and did not have the power to dismiss the appeals filed before it for non prosecution, nevertheless proceeded to dismiss thewrit petition on the ground that the miscellaneous applicationpreferred by the appellant for restoration of the appeal, wasitself belated. 6. We have heard Sri.Joseph Markos, the learned SeniorCounsel assisted by Sri.Abraham Joseph Markos for theappellant and Sri.Jose Joseph, the learned Standing Counselfor the Income Tax Department. 5. The learned Single Judge who considered the matter,although noticed the provisions of Section 254 of the IncomeTax Act, read with Rule 24 of the Income Tax (AppellateTribunal) Rules, 1963, and found that the Appellate Tribunalwas statutorily obliged to consider the appeal on merits, and did not have the power to dismiss the appeals filed before it for non prosecution, nevertheless proceeded to dismiss thewrit petition on the ground that the miscellaneous applicationpreferred by the appellant for restoration of the appeal, wasitself belated. 6. We have heard Sri.Joseph Markos, the learned SeniorCounsel assisted by Sri.Abraham Joseph Markos for theappellant and Sri.Jose Joseph, the learned Standing Counselfor the Income Tax Department. 7. On a consideration of the rival submissions, we findthat another Division Bench of this Court, in the decisionreported in Uzhuva Service Co-operative Bank Ltd. v.Income Tax Officer and others [2020 (5) KHC 615] has, inan almost identical situation, found that the Income TaxAppellate Tribunal acting under Section 254 of the IT Act,1961, cannot dismiss an appeal preferred by an assessee fornon-prosecution. The court found that in terms of theprovisions of Section 254 of the IT Act, the Appellate Tribunalwas statutorily obliged to consider all appeals on merits and the dismissal for non-prosecution, without considering the merits of the appeal, was not legally sustainable. We furthernotice that in the said case also, the assessee had filed anapplication for the restoration of the appeal beyond thestatutory period prescribed under the Income Tax (AppellateTribunal) Rules. The situation, therefore, was not differentfrom what arises in the instant case. 8. Thus, taking note of the said precedent of this Courtand finding it to be in confirmity with the statutory provisionsunder the IT Act and Rules, we allow this writ appeal bysetting aside the impugned judgment of the learned SingleJudge, as also Ext.P4 and P6 orders of the Income TaxAppellate Tribunal that were impugned in the writ petition,and direct the Appellate Tribunal to restore the appeal (ITA375/Coch/2016) on its file and pass orders on merits afterhearing the appellant, within an outer time limit of six monthsfrom the date of receipt of a copy of this judgment. smm 7 The writ appeal is disposed as above. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- SYAM KUMAR V.M. JUDGE