Wp(C)/27614/2024 Of M/S. D.c.mills Pvt.ltd v. The Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 5 DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 WP(C) NO. 27614 OF 2024 PETITIONER/S: M/S. D.C.MILLS PVT.LTD., REGD. OFFICE BUILDING NO.134/1, VALAVANADU, KALAVOOR.P.O, ALAPPUZHA DISTRICT, REPRESENTED BY ITS MANAGER R.ANIL KUMAR, PIN - 688522BY ADVS. V.S.AFSAL KHAN V.A.SHAJI RESPONDENT/S: 1THE COMMISSIONER OF INCOME TAX (APPEALS),NATIONAL FACELESS ASSESSMENT CENTRE, NATIONAL FACELESS ASSESSMENT CENTRE, INCOME TAX DEPARTMENT, NEW DELHI-, PIN - 110034 2THE ASSISTANT COMMISSIONER OF INCOME TAX, NATIONAL FACELESS ASSESSMENT CENTER, INCOME TAX DEPARTMENT, NEW DELHI, PIN - 110034 3THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE,INCOME TAX DEPARTMENT, WARD 1 & TPS, INCOME TAX DEPARTMENT, WARD 1 & TPS, ALAPPUZHA, PIN - 688501 4JURISDICTIONAL CHIEF COMMISSIONER OF INCOME TAX ,INCOME TAX DEPARTMENT, ERNAKULAM, KOCHI, PIN – 682018INCOME TAX DEPARTMENT, ERNAKULAM, KOCHI, PIN – 682018 SRI. JOSE JOSEPH, SC, IT DEPARTMENT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON05.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27614 OF 2024 2 JUDGMENT Petitioner suffered an order of assessment for theassessment year 2017-18 under the provisions of the Income TaxAct, 1961 (hereinafter referred to as ‘the Act’). The lossreturned by the petitioner was found to be incorrect, on accountof which penalty proceedings were initiated against thepetitioner. Ext.P10 order of penalty dated 07.08.2021 wasissued, imposing on the petitioner the liability to pay penalty(under Section 270A of the Act) for a sum of Rs.7,37,55,890/-.The petitioner filed an appeal against Ext.P10 order of penaltywhich was dismissed by Ext.P13 order. The petitioner is nowbefore the Income Tax Appellate Tribunal by filing a SecondAppeal, which is stated to be pending consideration of theIncome Tax Appellate Tribunal along with a stay petition and anapplication for condonation of delay . The petitioner apprehendsthat recovery proceedings may be initiated to recover theamount of penalty, pending consideration of the matter by theIncome Tax Appellate Tribunal. 2.Learned counsel appearing for the petitioner submitsthat, pending consideration of the stay petition and theapplication for condonation of delay, the recovery proceedings WP(C) NO. 27614 OF 2024 3 may be kept in abeyance. 3.Heard the learned Senior Standing Counselappearing for the Department also. 4.Having heard the learned counsel appearing for thepetitioner and the learned Senior Standing Counsel appearingfor the Income Tax Department and considering the limitednature of relief now sought for by the petitioner, this writpetition will stand disposed of, directing the Income TaxAppellate Tribunal, Kochi Bench to consider and pass orders onthe delay petition and also on the stay petition filed in Ext.P17appeal, after affording an opportunity of hearing to thepetitioner, within a period of three months from the date ofreceipt of a certified copy of this judgment. Till such time asorders are passed as directed above, any proceeding forrecovery of any amount of assessment imposed on the petitionerfor the assessment year 2017-18 shall remain suspended. It ismade clear that the Tribunal needs to pass orders on theapplication for stay on merits only if it decides to condone thedelay in filing the appeal. It is also made clear that, it will beopen to the Income Tax Appellate Tribunal to consider the issueof maintainability of the stay petition on account of the failure to WP(C) NO. 27614 OF 2024 4 make a pre-deposit as contemplated by the Proviso to SubSection (2A) of Section 254 of the Act. ajt Sd/-GOPINATH P.JUDGE WP(C) NO. 27614 OF 2024 5 APPENDIX OF WP(C) 27614/2024 PETITIONER EXHIBITS WP(C) NO. 27614 OF 2024 4 make a pre-deposit as contemplated by the Proviso to SubSection (2A) of Section 254 of the Act. ajt Sd/-GOPINATH P.JUDGE WP(C) NO. 27614 OF 2024 5 APPENDIX OF WP(C) 27614/2024 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE CERTIFICATE OF COIR AWARD2007-2008Exhibit P2TRUE COPY OF THE EXTRACT OF POSSESSION NOTICEOF THE STATE BANK OF INDIA.Exhibit P3TRUE COPY OF THE RELEVANT PART OF THEASSESSMENT ORDER DATED 26.12.2019 ISSUED BYTHE 3RD RESPONDENT.Exhibit P4TRUE COPY OF THE NOTICE DATED 26.12.2019SERVED BY THE 3RD RESPONDENT ITS REGISTEREDMAIL ID.Exhibit P5TRUE COPY OF THE LETTER DATED 6.1.2021 ISSUEDBY THE 3RD RESPONDENTExhibit P6: TRUE COPY OF THE REPLY DATED 22.1.2021 BYTHE COMPANY BEFORE THE 3RD RESPONDENT.Exhibit P7TRUE COPY OF THE RECTIFICATION ORDER DATED13.4.2021.Exhibit P8TRUE COPY OF THE SHOW CAUSE NOTICE DATED3.5.2021 FOR PENALTY UNDER SECTION 270A OFTHE INCOME TAX ACT, 1961 ISSUED BY THE 2NDRESPONDENT.Exhibit P9TRUECOPYOFTHEORDERG.O.(RT)NO.459/2021/DMD DATED 7.6.2021.Exhibit P10TRUE COPY OF THE ORDER DATED 7.8.2021 ISSUEDBY THE 2ND RESPONDENT.Exhibit P11TRUECOPYOFTHELETTERNO.ITBA/COM/F/17/2021-22/1036218070(1) DATED7.10.2021 ISSUED BY THE 3RD RESPONDENTExhibit P12TRUE COPY OF THE JUDGMENT DATED 26.10.2021 INW.P.(C)NO.22855/2021 OF THIS HON'BLE HIGHCOURT OF KERALA, ERNAKULAMExhibit P13TRUE COPY OF THE ORDER DATED 18.3.2024U/S.250 OF INCOME TAX ACT, 1961 ISSUED BY THE1ST RESPONDENT TO THE PETITIONERExhibit P14TRUE COPY OF THE DISCHARGE SUMMARY OF THEAMRITA INSTITUTE OF MEDICAL SCIENCES ANDRESEARCH CENTER, EDAPPALLY, ERNAKULAM DATED27.6.2019.Exhibit P15TRUE COPY OF THE DEATH CERTIFICATE OFABBAS.P.M OF THE MARARIKKULAM NORTHPANCHAYATH DATED 12.7.2021 Exhibit P16 TRUE COPY OF THE REQUEST FOR MISSING ID DATED7.6.2024.TRUE COPY OF THE APPEAL NO. NIL DATED29.6.2024 FILED BY THE COMPANY BEFORE THEINCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH.TRUE COPY OF THE STAY PETITION FILED BY THECOMPANY BEFORE THE INCOME TAX APPELLATETRIBUNAL, COCHIN BENCH DATED 9.7.2024 Exhibit P17 Exhibit P18 Exhibit P19 TRUE COPY OF THE PETITION TO CONDONE THEDELAY FILED BY THE COMPANY BEFORE THE INCOMETAX APPELLATE TRIBUNAL, COCHIN BENCH DATED18.6.2024 Exhibit P20TRUE COPY OF THE ACKNOWLEDGEMENT OF E-FILINGOF INCOME TAX APPEAL BEFORE THE INCOME TAXAPPELLATE TRIBUNAL, COCHIN BENCH.