Wa/678/2024 Of Chandran Sarath v. Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/ Income Tax Officer

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 21 DAY OF MAY 2024 / 31ST VAISAKHA, 1946 WA NO. 678 OF 2024 AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.8758 OF 2024OF HIGH COURT OF KERALA APPELLANT/PETITIONER CHANDRAN SARATH,AGED 40 YEARSSINDHU SADANAM, THUVAYOOR NORTH, MANAKKALA, ADOOR, PATHANAMTHITTA, KERALA, PIN - 691551BY ADVS.ADITYA UNNIKRISHNANANIL D. NAIR (SR.)TELMA RAJU SINDHU SADANAM, THUVAYOOR NORTH, MANAKKALA, RESPONDENTS/RESPONDENTS 1ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OFINCOME TAX/ INCOME TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, DELHI, PIN – 110001INCOME TAX/ INCOME TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, DELHI, PIN – 110001 2COMMISSIONER OF INCOME TAX (APPEALS),NATIONAL FACELESS ASSESSMENT CENTRE (NFAC), NEW DELHI, PIN - 110001BY ADVS.CHRISTOPHER ABRAHAMP.R.AJITH KUMAR(K/000708/1998) SC: ADV P R AJITH KUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: J U D G M E N T============ Dated this the 21[st] day of May, 2024 Dr. A.K.Jayasankaran Nambiar, J. This writ appeal impugns the judgment dated 20.03.2024of a learned Single Judge in W.P(C)No.8758 of 2024. 2. Briefly stated the facts necessary for disposal of thiswrit appeal are as follows: The appellant is an assessee under the provisions of theIncome Tax Act,1961 ('the Act' for short). He is engaged in thebusiness of buying and selling of cashew. The assessment forthe assessment years 2015-2016 was completed under Section147 read with Section 144 and 144B of the Act on 22.03.2022.The appellant was assessed to an escaped income ofRs.2,08,64,696/- on which amount tax and penalty wasdemanded. Aggrieved by the assessment order, the appellant preferred an appeal before the Appellate Authority (2[nd]respondent). In the format of the appeal, against Serial No.9which required the appellant to indicate whether he had paidan amount equal to the amount of advance tax as per Section249(4)(b) of the Act, as a pre-condition for maintaining theappeal, as he had not filed any return for the assessment yearsin question, the appellant had indicated 'not applicable'. Thisled the First Appellate Authority to presume that the appellantwas not claiming any waiver of the pre-condition as envisagedunder the proviso to Section 249(4)(b). The appeal preferredby the appellant was therefore rejected on the technicalground that the appellant had not complied with the pre-condition for maintaining the appeal before the First AppellateAuthority. It was the said order of the appellate authority thatwas impugned in the writ petition aforementioned. 3. When the writ petition came up for hearing beforethe learned Single Judge, the learned Single Judge found thatagainst the order of the First Appellate Authority, theappellant had a remedy by way of filing a Second Appealbefore the Appellate Tribunal. The writ petition was therefore dismissed without prejudice to the right of the appellant toapproach the Appellate Tribunal against the order of the FirstAppellate authority. 4. We have heard Sri. Anil D Nair, learned SeniorCounsel assisted by Sri. Aditya Unnikrishnan for the appellantand Sri.P.R. Ajithkumar, the learned Standing Counsel for therespondents. 3. When the writ petition came up for hearing beforethe learned Single Judge, the learned Single Judge found thatagainst the order of the First Appellate Authority, theappellant had a remedy by way of filing a Second Appealbefore the Appellate Tribunal. The writ petition was therefore dismissed without prejudice to the right of the appellant toapproach the Appellate Tribunal against the order of the FirstAppellate authority. 4. We have heard Sri. Anil D Nair, learned SeniorCounsel assisted by Sri. Aditya Unnikrishnan for the appellantand Sri.P.R. Ajithkumar, the learned Standing Counsel for therespondents. 5. On a consideration of the rival submissions, we findthat this is a case where the Appellate Tribunal cannot reallyconsider the case of the appellant on merits in an appealpreferred by the appellant against the order of the FirstAppellate Authority. This is because the First AppellateAuthority dismissed the appeal preferred by the appellantagainst the assessment order on a technical ground of noncompliance with a pre-condition for maintaining the appeal.We take note of the submission of the learned Senior Counselfor the appellant that the appellant had inadvertently omittedto prefer a formal application in terms of the proviso toSection 249(4)(b) and it was because of the said omission that the First Appellate Authority did not consider his case forwaiver of the requirement of payment of an amount equal tothe amount of advance tax that was payable by him. He wouldsubmit that if an opportunity is afforded to him at this stage,he would prefer an application in terms of the proviso toSection 249(4)(b) and the First Appellate Authority may bedirected to consider the same on merits. We find force in thesaid submission of the learned Senior Counsel especially whenit is the case of the appellant that there was no income thathad accrued to him during the said assessment year that couldhave been subjected to tax. 6. In the result, we set aside Ext.P3 order of the FirstAppellate Authority (2[nd] respondent) and direct the 2[nd]respondent to consider the application to be preferred by theappellant in terms of the proviso to Section 249(4)(b), within amonth from the date of receipt of the same from the appellantherein. On his part, the appellant shall take steps to file thesaid application in terms of the proviso to Section 249(4)(b)before the 2[nd] respondent within ten days from the date ofreceipt of a copy of this judgment. To enable the appellant to file the said application, the respondents shall ensure that theportal of the Income Tax Department is kept open to receivethe said application within the aforesaid period of ten daysgranted in this judgment. The 2[nd] respondent shall also ensurethat the appellant is afforded an opportunity of personalhearing in the virtual mode before passing orders on thewaiver application preferred by the appellant. The writ appeal is thus allowed as above. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- SYAM KUMAR V.M. JUDGE smm