Wp(C)/3115/2023 Of Zerone Consulting Pvt. Ltd v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI TUESDAY, THE 31 DAY OF JANUARY 2023 / 11TH MAGHA, 1944 WP(C) NO. 3115 OF 2023 PETITIONER: ZERONE CONSULTING PVT. LTDFIRST FLOOR, PLOT # 17B,COCHIN SPECIAL ECONOMIC ZONE,KAKKANAD, ERNAKULAM, KERALA- 682037REPRESENTED BY ITS DIRECTOR, ASHIQ AL JHAN. BY ADVS.ANIL D. NAIRP.K.BIJUTELMA RAJUANJANA A. RESPONDENTS: 1INCOME TAX OFFICERCORPORATE WARD-2(2), CENTRAL REVENUE BUILDING, I.S PRESS ROAD, KOCHI, PIN – 682018. 2ASSISTANT COMMISSIONER OF INCOME TAXCORPORATE CIRCLE 2 (1), CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI, PIN – 682018. 3ADDITIONAL/ JOINT/ DEPUTY/ ASSISTANT COMMISSIONER OF INCOME TAX INCOME DEPARTMENT,NATIONAL FACELESS ASSESSMENT CENTRE (NFAC),NEW DELHI – 110001. 4PRINCIPAL COMMISSIONER OF INCOME TAXCENTRAL REVENUE BUILDINGIS PRESS ROAD, KOCHI- 682018. WP(C) NO. 3115 OF 2023 5COMMISSIONER OF INCOME TAX (APPEALS)NATIONAL FACELESS APPEAL CENTRENEW DELHI – 110001.NATIONAL FACELESS APPEAL CENTRENEW DELHI – 110001. SRI. JOSE JOSEPH, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: T.R. RAVI, J. -------------------------------------------- W.P.(C) No.3115 of 2023 -------------------------------------------- Dated this the 31[st] day of January, 2023 JUDGMENT Admit. Standing Counsel takes notice for therespondents. The writ petition has been filed praying to quash Ext.P11and stay all further proceedings pursuant to Ext.P7. There isalso a prayer for disposal of Ext.P8 appeal. As per Ext.P7, thecompetent Authority had imposed penalty of Rs.81,53,075/-under Section 271(1)(c) of the Income Tax Act, 1961. Ext.P8is the appeal preferred against the order of penalty. Pendingthe appeal the petitioner had approached the AssessingAuthority and by Ext.P11, the petition for rectification of thepenalty order has been rejected. In Ext.P12 the Authority hadgranted stay of recovery of the penalty on condition of paying20% of the demand within ten days from the receipt of thecommunication. The order is dated 17.01.2023. It can thus beseen that the appeal is pending consideration and as far as the WP(C) NO. 3115 OF 2023 penalty is concerned the Assessing Officer has directedpayment of 20% of the demand. Since the petitioner hasalready availed the statutory remedy and since the issue is notone which can be considered and disposed of in theseproceedings, interest of justice will be served if the petitioneris relegated to take the appellate remedy. In the above circumstances, the writ petition is disposed of directing the 5[th] respondent to hear and dispose of Ext.P8appeal at the earliest, at any rate within six months from thedate of receipt of a copy of this judgment. The time grantedfor payment of 20% of demand in Ext.P12 shall standextended by a further period of one month. Sd/- mpm T.R.RAVIJUDGE APPENDIX OF WP(C) 3115/2023 PETITIONER'S EXHIBITS Exhibit P1TRUE COPY OF THE ASSESSMENT ORDER UNDER SECTION 143(3), DATED 23.11.2017 ISSUED BYTHE 1ST RESPONDENT.SECTION 143(3), DATED 23.11.2017 ISSUED BYTHE 1ST RESPONDENT. Exhibit P2TRUE COPY OF ORDER UNDER SECTION 263 DATED16-03-2020 OF THE REPLY FILED BY THE 4TH RESPONDENT.16-03-2020 OF THE REPLY FILED BY THE 4TH RESPONDENT. Exhibit P3TRUE COPY OF THE ASSESSMENT ORDER DATED 30.09.2021 UNDER SECTION 143(3) R.W.S. 263ISSUED BY THE 2ND RESPONDENT.30.09.2021 UNDER SECTION 143(3) R.W.S. 263ISSUED BY THE 2ND RESPONDENT. Exhibit P4TRUE COPY OF NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) DATED 30-09-2021 ISSUED BY THE 2ND RESPONDENT.R.W.S. 271(1)(C) DATED 30-09-2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P5TRUE COPY OF SHOW CAUSE NOTICE UNDER SECTION 271(1)(C) DATED 16-03-2022 ISSUED BY THE 3RD RESPONDENT.SECTION 271(1)(C) DATED 16-03-2022 ISSUED BY THE 3RD RESPONDENT. Exhibit P2TRUE COPY OF ORDER UNDER SECTION 263 DATED16-03-2020 OF THE REPLY FILED BY THE 4TH RESPONDENT.16-03-2020 OF THE REPLY FILED BY THE 4TH RESPONDENT. Exhibit P3TRUE COPY OF THE ASSESSMENT ORDER DATED 30.09.2021 UNDER SECTION 143(3) R.W.S. 263ISSUED BY THE 2ND RESPONDENT.30.09.2021 UNDER SECTION 143(3) R.W.S. 263ISSUED BY THE 2ND RESPONDENT. Exhibit P4TRUE COPY OF NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) DATED 30-09-2021 ISSUED BY THE 2ND RESPONDENT.R.W.S. 271(1)(C) DATED 30-09-2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P5TRUE COPY OF SHOW CAUSE NOTICE UNDER SECTION 271(1)(C) DATED 16-03-2022 ISSUED BY THE 3RD RESPONDENT.SECTION 271(1)(C) DATED 16-03-2022 ISSUED BY THE 3RD RESPONDENT. Exhibit P6TRUE COPY OF REPLY FILED BY THE PETITIONERTO SHOW CAUSE NOTICE UNDER SECTION 271(1)(C) DATED 17-03-2022.TO SHOW CAUSE NOTICE UNDER SECTION 271(1)(C) DATED 17-03-2022. Exhibit P7TRUE COPY OF THE ASSESSMENT ORDER DATED 21.03.2022 UNDER SECTION 271(1)(C)ISSUED BY THE 3RDRESPONDENT.21.03.2022 UNDER SECTION 271(1)(C)ISSUED BY THE 3RDRESPONDENT. Exhibit P8TRUE COPY OF THE APPEAL FILED ON 19-04-2022 BEFORE THE 5TH RESPONDENT.19-04-2022 BEFORE THE 5TH RESPONDENT. Exhibit P9TRUE COPY OF RECTIFICATION APPLICATION FILED U/S 154 DATED 25-04-2022 BEFORE THE DY. COMMISSIONER OF INCOME TAX.FILED U/S 154 DATED 25-04-2022 BEFORE THE DY. COMMISSIONER OF INCOME TAX. Exhibit P10TRUE COPY OF CBDT CIRCULAR NO. 25/2015 DATED 31.12.2015.DATED 31.12.2015. Exhibit P11 Exhibit P12 Exhibit P13 Exhibit P13 (a) TRUE COPY OF ORDER DATED 15.12.2022 PASSEDBY 2ND RESPONDENT TOWARDS RECTIFICATION REQUEST MADE BY THE PETITIONER. TRUE COPY OF ORDER DATED 17.01.2023 PASSEDBY 2ND RESPONDENT TOWARDS STAY OF DEMAND U/S 220(6). TRUE COPY OF OFFICE MEMORANDUM NO. F NO. 404/72/93-ITCC DATED 31.07.2017 ISSUED BY THE CBDT. TRUE COPY OF OFFICE MEMORANDUM NO. F NO. 404/72/93-ITCC DATED 29-02-2016 ISSUED BY THE CBDT.