Wp(C)/20226/2023 Of Sri Umadharan K.c v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 21 DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 WP(C) NO. 20226 OF 2023 PETITIONER: 1SRI UMADHARAN K.CAGED 66 YEARSS/O KUNJU CHANNAR UD CREATIONS RAVIMANGALATH PUTHUPALLY NORTH KAYAMKULAM, ALAPPUZHA KERALA., PIN - 695027BY ADV DIVYA RAVINDRAN RESPONDENTS: 1THE INCOME TAX OFFICERWARD-TDS, AAYAKAR BHAVAN ALAPPUZHA- KERALA, PIN - 6880012DEPUTY COMMISSIONER OF INCOME TAXTDS, CPC ,AAYKAR BHAVAN, SECTOR-3, VAISHALI, GHAZIABAD, UTTAR PRADESH, PIN - 2010103THE COMMISSIONER OF INCOME TAX (TDS) CR BUILDING, I.S PRESS ROAD, KOCHI., PIN - 6820184CENTRAL BOARD OF DIRECT TAXESNORTH BLOCK, NEW DELHI, PIN - 110002 REPRESENTED BY ITS CHAIRMANSRI CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.S.DIAS, J. ------------------------- W.P.(C.) No.20226 of 2023 ------------------------- Dated this the 21[st] day of June, 2023 JUDGMENT The writ petition is filed, to quash Ext.P5order passed by the third respondent and forthe reconsideration of Ext.P4 revision petitionafresh, after adverting to Exts.P6 and P7judgments. 2. The petitioner's case is as follows: (i)The petitioner is an assessee forseveral years. There was a delay on hispart in filing quarterly returns for thefinancial years 2012-13 and 2014-15 asprescribed under Section 200 of IncomeTax Act, 1961 (in short ‘Act’). (ii) The second respondent processed the TDS return filed by the petitioner andhas levied late fee under Section 234Eread with Section 220(2) of the Act. (iii) It is only in the year 2021, that thepetitioner came to learn of the levy oflate fee through a notice that was sent bythe first respondent demanding paymentof arrears of tax. The petitioner has notreceived the earlier orders. (iv) As Exts.P2 and P3 orders werepassed in the years 2015 and 2016, andas the statutory period to file the appealsand the rectification applications hasexpired, the petitioner preferred arevision petition before the thirdrespondent under Section 264 of the Act. (v) The petitioner’s principal contention is that Section 200A(1)(c) was incorporated only on 01.06.2015. Thesaidprovisiondoesnothaveretrospective application. Therefore, theauthority is not empowered to collect latefee under Section 234(e) of the Act. (vi) However, the third respondentdismissed Ext.P4 revision petition, by theimpugned Ext.P5 order, relying on thedecision of the Gujarat High Court. (vii) In Ext.P5 order, the JointCommissioner has specifically referred toExt.P7 judgment passed by a DivisionBench of this Court, wherein it is heldthat the above provision has noapplication to assessments prior to01.06.2015. (viii) Although the said matter wasbrought to the notice of the third respondent, he has failed to advert to the decision of this Court, instead has relied on the decision of the Gujarat High Courtwhich has only persuasive effect.(ix)Ext.P5 order is erroneous and palpablywrong and liable to be set aside. Hence,the writ petition. 3. Heard; Smt.Divya Ravindran, the learned Counsel appearing for the petitioner andSri.Christopher Abraham, the learned Counselappearing for the respondents. 4. The Division Bench of this Court in Ext.P7judgment has categorically declared thatSection 200A(1)(c) of the Act has noretrospective operation for assessments prior to01.06.2015. 5. Even though the above decision wasbrought to the notice of the third respondent as reflected in paragraph 3 of the impugned order,under the head ‘comments of the JointCommissioner, Income Tax (TDS), the thirdrespondent has failed to follow the ratiodecidendi of this Court in Ext.P7 judgment. 3. Heard; Smt.Divya Ravindran, the learned Counsel appearing for the petitioner andSri.Christopher Abraham, the learned Counselappearing for the respondents. 4. The Division Bench of this Court in Ext.P7judgment has categorically declared thatSection 200A(1)(c) of the Act has noretrospective operation for assessments prior to01.06.2015. 5. Even though the above decision wasbrought to the notice of the third respondent as reflected in paragraph 3 of the impugned order,under the head ‘comments of the JointCommissioner, Income Tax (TDS), the thirdrespondent has failed to follow the ratiodecidendi of this Court in Ext.P7 judgment. 6. I find the course adopted by the thirdrespondent to be erroneous and wrong. WhenExt.P7 judgment was brought to the notice ofthe third respondent, he was bound to followthe binding precedent. 7. In the above background, in exercise ofthe powers of this Court under Article 226 ofthe Constitution of India, I set aside Ext.P5order as prayed in the writ petition and directthe third respondent to reconsider the matterafresh after adverting to Exts.P6 and P7judgments of this Court. Resultantly, I order the writ petition as follows: (i) Ext.P5 order is set aside. (ii) The third respondent is directed toconsider and dispose of Ext.P4 revision petition,in accordance with law, after adverting to lawlaid down by this Court in Exts.P6 and P7judgments, as expeditiously as possible, afteraffording the petitioner an opportunity of beingheard. (iii) Until such time orders are passed on Ext.P4 revision petition as ordered above, allfurther proceedings pursuant to Ext.P1 noticeshall stand deferred. SKP/21-06 Sd/- C. S. DIAS JUDGE APPENDIX OF WP(C) 20226/2023 TRUE COPY P.A.TO JUDGE