Wa/1431/2021 Of Jijujoseph Joseph v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 15 DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 WA NO. 1431 OF 2021 AGAINST THE ORDER/JUDGMENT IN WP(C) 21456/2021 OF HIGH COURT OF KERALA, ERNAKULAM APPELLANT/S: JIJUJOSEPH JOSEPHIDUKKI DISTRICT-685 515, KERALA PACHAKKANAM HOUSE, PULIYANMALA P.O, IDUKKI, BY ADVS.ANIL D. NAIRTELMA RAJUSANGEETH JOSEPH JACOBCHRISTINA ANNA PAULEDATHARA VINEETA KRISHNANARAVIND SREEKUMAR RESPONDENT/S: INCOME TAX OFFICERNATIONAL FACEESS ASSESSMENT CENTRE, NEW DELHI-110003 OTHER PRESENT: SC CHRISTOPHER ABRAHAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ONTHE SAME DAY DELIVERED THE FOLLOWING: WA NO. 1431 OF 2021 J U D G M E N T S.V.Bhatti,J. Writ petitioner is the appellant. The appellant filed W.P.(C)No.21456 of 2021 assailing the order of penalty dated 25.09.2021,marked as Ext.P7, made under Sec.270A of the Income Tax Act,1961 (for short, 'the Act'). The circumstances referred to andrelied on by the appellant are briefly stated thus: 2.The respondent through Ext.P1 order dated26.03.2021, finalised the return filed by the assessee for theassessment year 2018-19 under Sec.143(3) read with Sections143(3A) and 143(3B) of the Act. The assessee filed Ext.P2 appealagainst Ext.P1 assessment order before Commissioner of IncomeTax (Appeals) and the appeal is pending as on date. During thependency of the appeal, the assessee received Ext.P3 noticedated 26.03.2021 and called upon the assessee to file reply if any.Ext.P5 show cause notice incorporates the following clauses: “6. In case you had requested for keeping the penaltyproceedings in abeyance, you are requested to upload acopy of the said reply. 7.In case no response is received by the given timeand date, the penalty order shall be passed without thebenefit of your explanation.” 3.The assessee through Ext.P4 reply has requested to keep the penalty proceedings in abeyance as the appeal filedagainst the assessment order in Ext.P1 is still pending before the Commissioner of Income Tax (Appeals). Now the grievance ofassessee is that the penalty order in Ext.P7 has been madewithout firstly looking into the reply given by the assessee,secondly, not accepting the prayer of assessee, for keeping thepenalty proceeding in abeyance. 4.Hence, it is stated that the writ jurisdiction of thisCourt under Article 226 of the Constitution of India is invoked for challenging the order in Ext.P7.The learned Single Judgethrough the judgment impugned in the appeal declined toexercise jurisdiction under Article 226 of Constitution of Indiaand dismissed the writ petition. Hence the appeal. WA NO. 1431 OF 2021 -4- 5. We have taken note of the reasons given by the learned Single Judge and prima facie, we are of the view that thereasons noted for not entertaining the writ petition are availableand no exception could be taken to the proceedings. In otherwords, the reasons stated by the learned Single Judge for notexercising the discretionary jurisdiction hardly needinterference in this intra-court appeal. 6.After the order is dictated, the learned counsel Mr.Anil D. Nair, argued that the effort of assessee is to first work outthe grievances against the assessment order in Ext.P1 and theassessee if is successful, penalty initiated under Sec.270A of theAct becomes redundant or unavailable. To avoid repetition ofdoing the same job twice over, the assessee requests to keep thepenalty proceeding in abeyance during the pendency of appeal inExt.P2. Under these circumstances, to avoid multiplicity ofproceedings, this Court considers directing the Commissioner ofIncome Tax (Appeals) to consider and dispose of Ext.P2 appeal WA NO. 1431 OF 2021 expeditiously and in the interregnum to stay the operation ofExt.P7 order. 6.After the order is dictated, the learned counsel Mr.Anil D. Nair, argued that the effort of assessee is to first work outthe grievances against the assessment order in Ext.P1 and theassessee if is successful, penalty initiated under Sec.270A of theAct becomes redundant or unavailable. To avoid repetition ofdoing the same job twice over, the assessee requests to keep thepenalty proceeding in abeyance during the pendency of appeal inExt.P2. Under these circumstances, to avoid multiplicity ofproceedings, this Court considers directing the Commissioner ofIncome Tax (Appeals) to consider and dispose of Ext.P2 appeal WA NO. 1431 OF 2021 expeditiously and in the interregnum to stay the operation ofExt.P7 order. 7.We have heard Mr.Christopher Abraham on thealternative submission of Mr. Anil D Nair. He states that withinreasonable time the appeal could be directed to be disposed of bythe Commissioner of Income Tax (Appeals). We are of the viewthat a solution to the issues canvassed both in assessment andpenalty orders could be finalised once Ext.P2 is considered anddisposed of expeditiously by the Commissioner of Income Tax(Appeals) and in the meantime, the appropriate orders arepassed in Ext.P7. Hence, writ appeal stands disposed of as follows: a)The appellant is given liberty to file along with amemo the instant judgment before the AppellateAuthority within three weeks from today. b)The Appellate Authority considers and disposes ofappeal pending in Ext.P2, as expeditiously as possible, JS -6- preferably within three months from the date of filing ofmemo by the appellant. c)With a view to prevent recovery of penalty coveredby Ext.P7 assessee and the Department are directed tomaintain status quo as on date vis-à-vis Ext.P7, forfifteen weeks from today.Writ appeal is disposed of accordingly. Sd/-S.V.BHATTIJUDGE Sd/-BASANT BALAJIJUDGE