Wp(C)/31473/2022 Of K T Sayed Mohammed v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 3 DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 WP(C) NO. 31473 OF 2022 PETITIONER: 1K T SAYED MOHAMMED,AGED 68 YEARSAGED 68 YEARS NILA PARK ROAD, KAMPALA THECKEMURI HOUSE, SOUTH BAZAR, KUTTIPURAM, MALAPPURAM, PIN - 679571KUTTIPURAM, MALAPPURAM, PIN - 679571 BY ADVS. V.P.NARAYANAN ALAN PRIYADARSHI DEV RESPONDENTS: 1THE INCOME TAX OFFICER , WARD 1 & TPS, TIRUR, MALAPPURAM , PIN - 676101 2THE NATIONAL FACELESS ASSESSMENT CENTRE MAYUR BHAWAN, CONNAUGHT LANE, BARAKHAMBA ROAD, NEW DELHI-REPRESENTED BY THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, PIN - 110001REPRESENTED BY THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, PIN - 110001 3THE COMMISSIONER OF INCOME TAX (APPEALS) THE NATIONAL FACELESS APPEAL CENTRE, INCOME TAX DEPARTMENTR,MINISTRY OF FINANCE, JAWAHARLAL STADIUM, NEW DELHI, PIN - 110001MINISTRY OF FINANCE, JAWAHARLAL STADIUM, NEW DELHI, PIN - 110001 BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 03[rd] day of November, 2022 The petitioner suffered Ext.P1 order of assessmentunder the provisions of the Income Tax Act, 1961 forthe assessment year 2017-18. The petitioner haschallenged Ext.P1 order of assessment before the FirstAppellate Authority by filing Ext.P2 appeal before the 3[rd]respondent along with application for condonation ofdelay. In the meanwhile, the petitioner has been servedwith Exts.P3 and P4 orders imposing penalty underSections 271F and 271AAC(1) of the Income Tax Act. 2.The learned counsel appearing for thepetitioner would submit that the orders imposingpenalty were issued without the petitioner being able toparticipate in the proceedings. It is submitted thatthough notices were issued by the Officer, the petitionercould not appear and contest the penalty, on account ofthe fact that the petitioner was hosptialised. He alsostates that pending consideration of the appeal by the 3[rd] respondent, demands pursuant to Ext.P1 order ofassessment may be kept in abeyance. 3.The learned Standing Counsel appearing for the respondent Department states that the petitionerwas given an opportunity before Ext.P3 and P4 penaltyorders were passed. It is submitted that after havingfailed to appear in the proceedings, the petitionercannot contend that those orders imposing penaltymust be set aside on account of lack of opportunity. Itis submitted that since the orders imposing penalty areconsequence to Ext.P1 order of assessment, thedemands under Exts.P3 and P4 can be kept in abeyancetill the appeal against P1 order of assessment is decidedby the First Appellate Authority. 4.The learned counsel for the petitioner statesthat the petitioner will be satisfied with such an order. 5.Since it is stated by the learned counsel forthe petitioner that delay in filing the appeal is only 130days and considering the fact that the petitioner washospitalised for sometime, I am of the opinion that the delay in filing the appeal can be treated as condonedand the 3[rd] respondent can be directed to dispose ofExt.P2 appeal on merits treating the same as one filedwithin time. Accordingly, this writ petition is disposed ofdirecting the 3[rd] respondent to consider and pass orderson Ext.P2 appeal after affording to the petitioner anopportunity of being heard. Till such time as orders arepassed on Ext.P2 appeal, the demands pursuant toExt.P1 order of assessment and Exts.P3 and P4 ordersimposing penalty shall be kept in abeyance. SKP/03-11 Sd/- GOPINATH P.JUDGE APPENDIX OF WP(C) 31473/2022 PETITIONER'S EXHIBITS:EXHIBIT-P1 COPY OF THE ASSESSMENT ORDER DATED 23.03.2022 PASSED BY THE 2ND RESPONDENT COPY OF MEMORANDUM OF APPEAL FILED BEFORE THE 3RD RESPONDENT EXHIBIT-P2 EXHIBIT-P3 Accordingly, this writ petition is disposed ofdirecting the 3[rd] respondent to consider and pass orderson Ext.P2 appeal after affording to the petitioner anopportunity of being heard. Till such time as orders arepassed on Ext.P2 appeal, the demands pursuant toExt.P1 order of assessment and Exts.P3 and P4 ordersimposing penalty shall be kept in abeyance. SKP/03-11 Sd/- GOPINATH P.JUDGE APPENDIX OF WP(C) 31473/2022 PETITIONER'S EXHIBITS:EXHIBIT-P1 COPY OF THE ASSESSMENT ORDER DATED 23.03.2022 PASSED BY THE 2ND RESPONDENT COPY OF MEMORANDUM OF APPEAL FILED BEFORE THE 3RD RESPONDENT EXHIBIT-P2 EXHIBIT-P3 COPY OF PENALTY ORDER DATED 06.09.2022 UNDER SECTION 271F BY THE 1ST RESPONDENT EXHIBIT-P4 COPY OF THE PENALTY ORDER DATED 09.09.2022 PASSED BY THE 1ST RESPONDENT EXHIBIT-P5COPY OF THE COVID TEST REPORT DATED 28.01.2022EXHIBIT-P6TRUE COPY OF THE MEDICAL CERTIFICATE DATED 29.3.2022 AND TYPED COPY EXHIBIT-P7COPY OF MEDICAL CERTIFICATE DATED 18.8.2022RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE