Wp(C)/24663/2024 Of Infra Housing (P) Ltd v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 26 DAY OF JULY 2024 / 4TH SRAVANA, 1946 WP(C) NO. 24663 OF 2024 PETITIONER: INFRA HOUSING (P) LTD., 1ST FLOOR, CLS BUILDING, OPP. MAHARAJA'S COLLEGE, ERNAKULAM, KOCHI REPRESENTED BY ITS DIRECTOR SRI. GEORGE E. GEORGE, PIN – 682 011. BY ADVS. K.S.HARIHARAN NAIRSREE HARIDEVG.REMADEVIHARIMA HARIHARANRAJATH R NATHDHEERAJ SASIDHARAN RESPONDENTS: 1THE DEPUTY COMMISSIONER OF INCOME TAX, DCIT, CORPORATE CIR 1 (1), CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI, PIN – 682 018. 2ASSESSMENT UNIT,REPRESENTED BY PRINCIPAL CHIEF COMMISSIONER, INCOME TAX DEPARTMENT, NATIONAL E-ASSESSMENT CENTRE, MAYUR BHAWAN, CONNAUGHT LANE, NEW DELHI, PIN – 110 001. 3THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX,CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI, PIN – 682 018. BY ADVS. SRI. CYRIAC TOM (Jr.SC- IT DEPT) SRI. JOSE JOSEPH(SR.SC- IT DEPT) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON26.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner is an assessee under the Income Tax Act,1961 (hereinafter referred to as the ‘1961 Act’). For theassessment year 2015-2016 the petitioner did not file anyreturn of income. Assessment proceedings were commencedagainst the petitioner, including an allegation that there wasescapement of income of sums exceeding Rs.50,00,000/-.Proceedings were concluded under Section 148 of the1961 Act, and by Ext.P3 order dated 22-03-2024, theassessment proceedings have been completed raising a demandfor a sum of Rs.54,75,42,720/-. Penalties have also beenimposed on the petitioner by Ext.P5 series of orders. Thepetitioner filed an application for rectification of Ext.P3 order,which is stated to be pending. 2.The learned counsel appearing for the petitionerwould submit, relying on the judgment of this Court inWP(C)No.6385/2023, that the returned income for theassessment year 2015-2016 was Rs.19,67,077/- and the incomeassessed in Ext.P3 is approximately Rs.54 Crores. It issubmitted that in the judgment in W.P(C)No.6385/2023 this Court held as follows: “2. In the case on hand, the returned income wasonly Rs.6,93,940/- and the amount which has been arrivedat is Rs.4,94,18,803/-. It is almost 71 times and going by theyardstick followed by the Division Bench of the Delhi HighCourt, it definitely comes under the nomenclature of highpitched. It is in the above circumstances the learnedcounsel for the petitioner submits that it is a case where theAppellate Authority should be directed to hear the appealand dispose it of without insisting on payment. The counselfor the Department submitted that the appeal can bedirected to be disposed of but however, it may be on thebasis of a condition on payment of a portion of the tax. 3.I have considered the contentions on eitherside. It is seen that the appeal had been preferred in April,2022. It will be onerous to burden the petitioner with acondition of paying a portion of a tax in a case whichnecessarily has to be categorised under the high pitchedcategory going by the decisions referred to above,particularly since the appeal has been pending for almostnine months. 4.In the result, the writ petition is disposed ofdirecting the petitioner to approach the concernedAssessing Authority for opening the portal for preferring astay application and a stay application shall be preferredwithin two weeks from today. The Appellate Authority shalltake up the stay application along with the appeal andconsider the appeal itself and pass orders unless theAppellate Authority is of the opinion that the workload willnot permit such a course of action. In such a situation, theAppellate Authority shall consider the stay application with 4.In the result, the writ petition is disposed ofdirecting the petitioner to approach the concernedAssessing Authority for opening the portal for preferring astay application and a stay application shall be preferredwithin two weeks from today. The Appellate Authority shalltake up the stay application along with the appeal andconsider the appeal itself and pass orders unless theAppellate Authority is of the opinion that the workload willnot permit such a course of action. In such a situation, theAppellate Authority shall consider the stay application with particular reference to the decisions referred above andpass appropriate orders. All coercive steps shall be kept inabeyance till a decision as directed above is taken by theAppellate Authority”. The learned counsel appearing for the petitioner would submitthat the petitioner has now filed Ext.P7 appeal along withExt.P7(a) application for condonation of delay and Ext.P7(b)application for stay against Ext.P3 order of assessment andExts.P8, P9, P10 and P11 appeals against orders imposingpenalties together with applications for condonation of delayand for stay. It is prayed that the Appellate Authority may bedirected to consider and dispose of the appeals in accordancewith the law and till such time the demands in Ext.P3 order ofassessment and Ext.P5 series of penalty orders may be kept inabeyance. 3.The learned Standing Counsel appearing for theIncome Tax Department would submit that the AppellateAuthority can be directed to consider and pass orders on theapplications for condonation of delay and on the applicationsfor stay and till such time that orders are passed (afteraffording an opportunity of hearing to the petitioner) the demands in Ext.P3 order of assessment and Ext.P5 series oforders imposing penalty can be kept in abeyance. 4.Having heard the learned counsel appearing for thepetitioner and the learned Standing Counsel appearing for theIncome Tax Department and having regard to the judgment ofthis Court in W.P(C)No.6385/2023 and considering the fact thatagainst a returned income of Rs.19,67,077, the income of thepetitioner has been assessed at approximately Rs.54 Crores,I am of the view that the principles laid down by this Court inthe judgment in W.P(C)No.6385/2023 are to be followed in thiscase as well. 5.Accordingly, the writ petition will stand disposed ofdirecting the Appellate Authority before whom Exts.P7, P8, P9,P10 and P11 appeals have been filed to consider and passorders on the appeals and on the applications for condonationof delay after affording an opportunity of hearing to thepetitioner. It is made clear that the Appellate Authority needsto pass orders on the merits of Exts.P7, P8, P9, P10 and P11appeals only if the Appellate Authority decides to condone thedelay in fling the appeals. Till such time as orders are passed, any proceedings for recovery of any amount assessed as dueunder Ext.P3 and for the recovery of amounts imposed aspenalty under Ext.P5 series of orders shall remain suspended. Imake it clear that I have not expressed any opinion on themerits of the petitioner’s case and it will be open to theAppellate Authority to consider the applications filed by thepetitioner for condonation of delay as also the appeals inaccordance with the law. The Appellate Authority shallendeavour to pass orders as directed above within a period ofthree months from the date of receipt of a copy of thisjudgment. Writ petition is disposed of as above. Sd/- GOPINATH P.JUDGE ats APPENDIX OF WP(C) 24663/2024 PETITIONER’S EXHIBITS Exhibit P1TRUE COPY OF THE SHOW-CAUSE NOTICE DATED01-03-2024 ISSUED BY THE 2ND RESPONDENTFOR THE AY 2015-16.01-03-2024 ISSUED BY THE 2ND RESPONDENTFOR THE AY 2015-16. Writ petition is disposed of as above. Sd/- GOPINATH P.JUDGE ats APPENDIX OF WP(C) 24663/2024 PETITIONER’S EXHIBITS Exhibit P1TRUE COPY OF THE SHOW-CAUSE NOTICE DATED01-03-2024 ISSUED BY THE 2ND RESPONDENTFOR THE AY 2015-16.01-03-2024 ISSUED BY THE 2ND RESPONDENTFOR THE AY 2015-16. Exhibit P2TRUE COPY OF REPLY DATED 06-03-2024 ALONGWITH DOCUMENTS SUBMITTED BY THE PETITIONERBEFORE THE 2ND RESPONDENT.WITH DOCUMENTS SUBMITTED BY THE PETITIONERBEFORE THE 2ND RESPONDENT. Exhibit P2(a)THE SCREENSHOT OF THE EXT. P2 REPLY FILEDBY THE PETITIONER IN THE INCOME TAX WEBPORTAL.BY THE PETITIONER IN THE INCOME TAX WEBPORTAL. Exhibit P3TRUE COPY OF THE ASSESSMENT ORDER DATED22-03-2024 FOR THE AY 2015-16 ALONG WITHTHE DEMAND NOTICE ISSUED BY THE 2NDRESPONDENT.22-03-2024 FOR THE AY 2015-16 ALONG WITHTHE DEMAND NOTICE ISSUED BY THE 2NDRESPONDENT. Exhibit P4TRUE COPY OF THE RECTIFICATION PETITIONDATED 18-06-2024 FILED BY THE PETITIONERAGAINST THE EXT. P3 ASSESSMENT ORDERPASSED BY THE 2ND RESPONDENT FOR AY2015-16 ALONG WITH THE ANNEXURES.DATED 18-06-2024 FILED BY THE PETITIONERAGAINST THE EXT. P3 ASSESSMENT ORDERPASSED BY THE 2ND RESPONDENT FOR AY2015-16 ALONG WITH THE ANNEXURES. Exhibit P5TRUE COPY OF THE PENALTY ORDER DATED27-05-2024 ISSUED BY THE 2ND RESPONDENTUNDER SECTION 271B OF THE ACT.27-05-2024 ISSUED BY THE 2ND RESPONDENTUNDER SECTION 271B OF THE ACT. Exhibit P5(a)TRUE COPY OF THE PENALTY ORDER DATED27-05-2024 ISSUED BY THE 2ND RESPONDENTUNDER SECTION 271F OF THE ACT.27-05-2024 ISSUED BY THE 2ND RESPONDENTUNDER SECTION 271F OF THE ACT. Exhibit P5(b)TRUE COPY OF THE PENALTY ORDER DATED30-05-2024 ISSUED BY THE 2ND RESPONDENTUNDER SECTION 271(1)(B) OF THE ACT.30-05-2024 ISSUED BY THE 2ND RESPONDENTUNDER SECTION 271(1)(B) OF THE ACT. Exhibit P5(c)TRUE COPY OF THE PENALTY ORDER DATED30-05-2024 ISSUED BY THE 2ND RESPONDENTUNDER SECTION 271(1)(C) OF THE ACT.30-05-2024 ISSUED BY THE 2ND RESPONDENTUNDER SECTION 271(1)(C) OF THE ACT. Exhibit P6TRUE COPY OF THE JUDGMENT DATED 07-06-2024OF THE HON'BLE HIGH COURT OF KERALA IN THECASE OF MR. MAMMED KOMBAN VS. THE NATIONALFACELESS ASSESSMENT CENTER (WP(C) NO.17085 OF 2022).OF THE HON'BLE HIGH COURT OF KERALA IN THECASE OF MR. MAMMED KOMBAN VS. THE NATIONALFACELESS ASSESSMENT CENTER (WP(C) NO.17085 OF 2022). Exhibit P7TRUE COPY OF THE APPEAL MEMORANDUM DATED16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P3 BEFORE THE COMMISSIONER OF INCOMETAX(APPEALS),NATIONALFACELESSASSESSMENT CENTRE, NEW DELHI.16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P3 BEFORE THE COMMISSIONER OF INCOMETAX(APPEALS),NATIONALFACELESSASSESSMENT CENTRE, NEW DELHI. Exhibit P7(a)TRUE COPY OF THE DELAY CONDONATIONPETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P7 APPEAL.PETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P7 APPEAL. Exhibit P7(b)TRUE COPY OF THE STAY PETITION DATED16-07-2024 FILED BY THE PETITIONER IN EXT.P7 APPEAL.16-07-2024 FILED BY THE PETITIONER IN EXT.P7 APPEAL. Exhibit P8TRUE COPY OF THE APPEAL MEMORANDUM DATED16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5 BEFORE THE COMMISSIONER OF INCOMETAX(APPEALS),NATIONALFACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001.16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5 BEFORE THE COMMISSIONER OF INCOMETAX(APPEALS),NATIONALFACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001. Exhibit P8(a)TRUE COPY OF THE DELAY CONDONATIONPETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P8 APPEAL.PETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P8 APPEAL. Exhibit P8(b)TRUE COPY OF THE STAY PETITION DATED16-07-2024 FILED BY THE PETITIONER IN EXT.P8 APPEAL.16-07-2024 FILED BY THE PETITIONER IN EXT.P8 APPEAL. Exhibit P8TRUE COPY OF THE APPEAL MEMORANDUM DATED16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5 BEFORE THE COMMISSIONER OF INCOMETAX(APPEALS),NATIONALFACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001.16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5 BEFORE THE COMMISSIONER OF INCOMETAX(APPEALS),NATIONALFACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001. Exhibit P8(a)TRUE COPY OF THE DELAY CONDONATIONPETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P8 APPEAL.PETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P8 APPEAL. Exhibit P8(b)TRUE COPY OF THE STAY PETITION DATED16-07-2024 FILED BY THE PETITIONER IN EXT.P8 APPEAL.16-07-2024 FILED BY THE PETITIONER IN EXT.P8 APPEAL. Exhibit P9TRUE COPY OF THE APPEAL MEMORANDUM DATED16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5(A) BEFORE THE COMMISSIONER OFINCOME TAX (APPEALS), NATIONAL FACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001.16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5(A) BEFORE THE COMMISSIONER OFINCOME TAX (APPEALS), NATIONAL FACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001. Exhibit P9(a)TRUE COPY OF THE DELAY CONDONATIONPETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P9 APPEAL.PETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P9 APPEAL. Exhibit P9(b)TRUE COPY OF THE STAY PETITION DATED16-07-2024 FILED BY THE PETITIONER IN EXT.P9 APPEAL.16-07-2024 FILED BY THE PETITIONER IN EXT.P9 APPEAL. Exhibit P10TRUE COPY OF THE APPEAL MEMORANDUM DATED16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5(B) BEFORE THE COMMISSIONER OFINCOME TAX (APPEALS), NATIONAL FACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001.16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5(B) BEFORE THE COMMISSIONER OFINCOME TAX (APPEALS), NATIONAL FACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001. Exhibit P10(a)TRUE COPY OF THE DELAY CONDONATIONPETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P10 APPEAL.PETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P10 APPEAL. Exhibit P10(b)TRUE COPY OF THE STAY PETITION DATED16-07-2024 FILED BY THE PETITIONER IN EXT.P10 APPEAL.16-07-2024 FILED BY THE PETITIONER IN EXT.P10 APPEAL. Exhibit P11TRUE COPY OF THE APPEAL MEMORANDUM DATED16-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5(C) BEFORE THE COMMISSIONER OFINCOME TAX (APPEALS), NATIONAL FACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 00116-07-2024 FILED BY THE PETITIONER AGAINSTEXT.P5(C) BEFORE THE COMMISSIONER OFINCOME TAX (APPEALS), NATIONAL FACELESSASSESSMENT CENTRE, NEW DELHI, PIN-110 001 Exhibit P11(a)TRUE COPY OF THE DELAY CONDONATIONPETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P11 APPEAL.PETITION DATED 16-07-2024 FILED BY THEPETITIONER IN EXT.P11 APPEAL. Exhibit P11(b)TRUE COPY OF THE STAY PETITION DATED16-07-2024 FILED BY THE PETITIONER IN EXT.P11 APPEAL.16-07-2024 FILED BY THE PETITIONER IN EXT.P11 APPEAL.