Wp(C)/25875/2021 Of Mundackal Abdul Rahman Ashraf v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 26 DAY OF JULY 2022 / 4TH SRAVANA, 1944 WP(C) NO. 25875 OF 2021 PETITIONER: MUNDACKAL ABDUL RAHMAN ASHRAFMUNDACKAL HOUSE, PALLIKKAVALA,MUDICKAL.P.O, PERUMBAVOOR-683 547, KERALA. BY ADVS. DIVYA RAVINDRAN LINCY GLANCY RESPONDENTS: 1INCOME TAX OFFICERWARD 1 & TPS, ALUVA RANGE, R.S.ROAD, ALUVA-683101, KERALA. 2THE COMMISSIONER OF INCOME TAX(APPEALS),NATIONAL FACELESS APPEAL CENTER (NFAC), NEW DELHI-110 001. OTHER PRESENT: SRI. CHRISTOPHER ABRAHAM (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner has approached this Court beingaggrieved by Ext.P5 order by which the petitioner applicationfor condonation of delay in filing a statutory appeal beforethe 2[th ]respondent against Ext. P1 order of assessment hasbeen dismissed on the ground that the petitioner has notfurnished documents to prove his medical condition andtherefore the delay of 12 days in filing the appeal cannot becondoned. 2.The learned counsel for the petitioner states thatthe petitioner received Ext.P3 notice from the AppellateAuthority requiring the petitioner to upload writtensubmissions regarding the grounds taken in the appeal. It issubmitted that Ext.P3 is a notice under Section 250 of theIncome Tax Act and if any documents were to be filed beforethe Appellate Authority, the same would be shown as a listunder the head ‘Annexures’ to Ext.P3 notice. It is submittedthat the Appellate Authority did not ask the petitioner toupload any medical documents supporting the claim for condonation of delay for 12 days and arbitrarily rejected theapplication for condonation of delay. 3. The learned Standing Counsel appearing for the respondent department states that the petitioner has aneffective alternative remedy of appeal against Ext.P5 beforethe Income Tax Appellate Tribunal and there is no reason forhim to approach this Court under Article 226 of theConstitution of India. It is submitted that the AppellateAuthority had decided not to condone the delay of 12 days infiling the statutory appeal since the claim of the petitionerwas not found genuine and was unsupported by sufficientdocuments proving the medical condition of the petitioner. Itis submitted that there is nothing illegal in Ext.P5 order. 4.Having heard the learned counsel for the petitionerand the learned Standing Counsel for the respondent, I am ofthe view that considering the fact that the delay in filing thestatutory appeal was only 12 days, the Appellate Authorityshould have exercised his discretion to condone the saiddelay and to hear the appeal on merits. That apart the noticeissued by the Appellate Authority under Section 250 of the WP(C) NO. 25875 OF 2021 4 Income Tax Act shows that he had not requested foruploading any documents in support of the reason stated inthe application for condonation of delay. In the result Ext.P5order is set aside. The delay of 12 days in filing Ext.P2 willstand condoned and the Appellate Authority (2[nd] respondent)shall hear and dispose of Ext.P2 appeal after affording anopportunity of hearing to the petitioner in accordance withlaw. Writ petition is disposed of as above. Sd/- GOPINATH P.JUDGE WP(C) NO. 25875 OF 2021 5 APPENDIX OF WP(C) 25875/2021 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ASSESSMENT ORDER DATED 7.12.2019 PASSED BY THE 1ST RESPONDENT.PASSED BY THE 1ST RESPONDENT. Exhibit P2TRUE COPY OF MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE CIT(A)-II, KOCHI.PETITIONER BEFORE THE CIT(A)-II, KOCHI. Exhibit P3TRUE COPY OF THE NOTICE DATED 26.07.2021 SENT BY THE 2ND RESPONDENT.THE 2ND RESPONDENT. Exhibit P4TRUE COPY OF THE REPLY UPLOADED BY THE PETITIONER ON 28.07.2021.ON 28.07.2021. Writ petition is disposed of as above. Sd/- GOPINATH P.JUDGE WP(C) NO. 25875 OF 2021 5 APPENDIX OF WP(C) 25875/2021 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ASSESSMENT ORDER DATED 7.12.2019 PASSED BY THE 1ST RESPONDENT.PASSED BY THE 1ST RESPONDENT. Exhibit P2TRUE COPY OF MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE CIT(A)-II, KOCHI.PETITIONER BEFORE THE CIT(A)-II, KOCHI. Exhibit P3TRUE COPY OF THE NOTICE DATED 26.07.2021 SENT BY THE 2ND RESPONDENT.THE 2ND RESPONDENT. Exhibit P4TRUE COPY OF THE REPLY UPLOADED BY THE PETITIONER ON 28.07.2021.ON 28.07.2021. Exhibit P5TRUE COPY OF THE ORDER DATED 4.08.2021, ISSUED UNDER SECTION 250 OF THE ACT BY THE 2ND RESPONDENT.UNDER SECTION 250 OF THE ACT BY THE 2ND RESPONDENT. Exhibit P6TRUE COPY OF THE MEDICAL CERTIFICATE DATED 2.11.2021, OBTAINED FROMTHE DOCTOR.2.11.2021, OBTAINED FROMTHE DOCTOR. RESPONDENTS’ EXHIBITS: NIL