Wp(C)/1341/2019 Of Vattiyoorkavu Service Co-Operative Bank Limited v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940 WP(C).No. 1341 of 2019 PETITIONER/S: VATTIYOORKAVU SERVICE CO-OPERATIVE BANK LIMITED NO. 1652, REPRESENTED BY ITS SECRETARY VATTIYOORKAVU P.O, THIRUVANANTHAPURAM DISTRICT 695 013. BY ADVS.SRI.T.R.HARIKUMARSRI.ARJUN RAGHAVAN RESPONDENT/S: 1THE INCOME TAX OFFICER,WARD-2 (1), OFFICE OF THE JOINT COMMISSIONER OF INCOME TAX, RANGE-2, 1ST FLOOR, AYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM DISTRICT 695 003.COMMISSIONER OF INCOME TAX, RANGE-2, 1ST FLOOR, AYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM DISTRICT 695 003. 2THE COMMISSIONER OF INCOME TAX(APPEALS), THIRUVANANTHAPURAM 695 003.(APPEALS), THIRUVANANTHAPURAM 695 003. SC SRI. K.V. M. PANDALAI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, an assessee, filed a statutory appeal before the 2[nd] respondent with a delay of 23 days. The delay was not condoned.Aggrieved, the petitioner has filed this writ petition. 2.In response to the submissions made by the petitioner'scounsel, the learned Standing Counsel has informed the Court thatthe petitioner never filed any application for delay condonation.According to him, even at the time of his making the submissions,the petitioner's counsel never requested the appellate authority tocondone the delay. Only under those compelling circumstances hasthe appellate authority been constrained, further submits thelearned Standing Counsel, to dismiss the statutory appeal. 3. In reply, the petitioner's counsel does insist that the petitioner filed a delay condonation petition. But he eventuallyagreed that the alleged delay condonation petition had nodepartmental seal to establish that it had in fact been filed. 4.I cannot find fault with the approach the appellateauthority has adopted. In the absence of any delay condonation petition, he cannot but dismiss the statutory appeal. Indeed there are decided cases that filing a delay condonation petition is atechnicality; if the pleadings have reference to the delay, theauthority or the judicial forum can consider that issue. Even forthat, the petitioner must advance that argument, atleast, at the stagewhen the issue was sought to be decided on merits. Here,admittedly, even that was lacking. 5.I must also observe that the petitioner, a Co-OperativeBank, may have been represented by its employee for briefing thecounsel and having the appeal filed before the appellate authority.——In turn, the counsel may haveI am not sureoverlooked the heedof filing a delay condonation petition. The delay is only 23 days,though. 6. Under these circumstances, to let the petitioner suffer on technicality and for, presumably, the counsel's oversight will notserve the interest of justice. I, therefore, without finding fault withthe appellate authority's approach, set aside the Ext.P9 and remandthe matter to the appellate authority. If the petitioner files a delaycondonation petition in two weeks from now, the authority will consider that on merits. To be sure, I also observe that this judgment contains no reference to the merits of the delay condonationpetition. And it is for the appellate authority to decide it, using itsdiscretion. In the interest of justice, in the meanwhile, theauthorities will defer coercive steps. This Writ Petition is disposed of as above. Sd/- sd DAMA SESHADRI NAIDUJUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1A TRUE COPY OF ASSESSMENT ORDER FOR THE YEAR 2014-2015 DATED 22.12.20172015 DATED 22.12.2017 EXHIBIT P2A TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 156 OFTHE INCOME TAX ACT DATED 22/12/2017.THE INCOME TAX ACT DATED 22/12/2017. EXHIBIT P3A TRUE COPY OF NOTICE ISSUED UNDER SECTION 271 (1) (C) DATED 22/12/2017DATED 22/12/2017 consider that on merits. To be sure, I also observe that this judgment contains no reference to the merits of the delay condonationpetition. And it is for the appellate authority to decide it, using itsdiscretion. In the interest of justice, in the meanwhile, theauthorities will defer coercive steps. This Writ Petition is disposed of as above. Sd/- sd DAMA SESHADRI NAIDUJUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1A TRUE COPY OF ASSESSMENT ORDER FOR THE YEAR 2014-2015 DATED 22.12.20172015 DATED 22.12.2017 EXHIBIT P2A TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 156 OFTHE INCOME TAX ACT DATED 22/12/2017.THE INCOME TAX ACT DATED 22/12/2017. EXHIBIT P3A TRUE COPY OF NOTICE ISSUED UNDER SECTION 271 (1) (C) DATED 22/12/2017DATED 22/12/2017 EXHIBIT P4A TRUE COPY OF THE ONLINE APPEAL PREFERRED BY THE PETITIONER AGAINST EXHIBIT -P1 ASSESSMENT ORDER DATED 22.02.2018.PETITIONER AGAINST EXHIBIT -P1 ASSESSMENT ORDER DATED 22.02.2018. EXHIBIT P5A TRUE COPY OF APPEAL MEMORANDUM CONTAINING GROUNDS OF APPEAL FILED BY THE PETITIONER ALONG WITH COVERING LETTER DATED 10.2.2018.GROUNDS OF APPEAL FILED BY THE PETITIONER ALONG WITH COVERING LETTER DATED 10.2.2018. EXHIBIT P6A TRUE COPY OF THE STAY APPLICATION FILED BY THE PETITIONER ALONG WITH EXT P5 APPEAL DATED 10.2.2018PETITIONER ALONG WITH EXT P5 APPEAL DATED 10.2.2018 EXHIBIT P7A TRUE COPY OF THE COMMUNICATION DATED 27.11.2018 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENTISSUED FROM THE OFFICE OF THE 2ND RESPONDENTEXHIBIT P8A TRUE COPY OF THE SUBMISSION DATED 1.12.2018 FILED BYTHE PETITIONER BEFORE THE 2ND RESPONDENTTHE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P9A TRUE COPY OF THE ORDER IN ITA NO. 478/EF/TVM/CIT (A)/TVM/2017-18 DATED 10.12.2018.(A)/TVM/2017-18 DATED 10.12.2018.EXHIBIT P10A TRUE COPY OF THE COMMUNICATION F.NO. AAAV 0521A/W-2 (1)/TVM/2018-19 ISSUED BY THE 1ST RESPONDENT DATED 19.12.20180521A/W-2 (1)/TVM/2018-19 ISSUED BY THE 1ST RESPONDENT DATED 19.12.2018 EXHIBIT P11A TRUE COPY OF APPLICATION DATED 21.12.2018, FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, WITH ACKNOWLEDGEMENT.THE PETITIONER BEFORE THE 2ND RESPONDENT, WITH ACKNOWLEDGEMENT. EXHIBIT P12A TRUE COPY OF THE ORDER IN ITA NO. 172/EF/TVM/CIT (A)/TVM/2017-18 DATED 10.12.2018(A)/TVM/2017-18 DATED 10.12.2018 sd