Wp(C)/37397/2023 Of Chalakkal Antony Jose Valloor v. The Additional/ Joint/ Deputy/ Assistant Commissioner Of Income Tax/ Income-Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 20 DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 WP(C) NO. 37397 OF 2023 PETITIONER/S: CHALAKKAL ANTONY JOSE VALLOORAGED 57 YEARSS/O ANTONY CHALAKKAL HOUSE, PUTHENPEEDIKA , ANTHIKAD, PIN - 680642 BY ADVS.NITISH SATHESH SHENOYSUKUMAR NAINAN OOMMENSHERRY SAMUEL OOMMENM.S.INSAAF MUHAMMEDUSREELEKSHMI BEN RESPONDENT/S: 1THE ADDITIONAL/ JOINT/ DEPUTY/ ASSISTANT COMMISSIONER OF INCOME TAX/ INCOME-TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, 4TH FLOOR, MAYUR BHAWAN, CONNAUGHT CIRCUS, NEW DELHI., PIN - 110001 2THE NATIONAL FACELESS APPEAL CENTRE (NFAC)MAYUR BHAWAN, CONNAUGHT LANE, BARAKHAMBA, NEW DELHI -REPRESENTED BY ITS COMMISSIONER, PIN - 110001 3THE COMMISSIONER OF INCOME-TAXAAYAKAR BHAVAN, ST NAGAR, TRICHUR, PIN - 680001 4THE INCOME-TAX OFFICERWARD 2(1), THRISSUR, AAYAKAR BHAVAN, INCOME TAX OFFICE, SHAKTHANTHAMPURAN NAGAR, THRISSUR, KERALA, WP(C) NO. 37397 OF 2023 2 PIN - 680001 BY ADVS.ADV. P.G. JAYASHANKAR PGJKEERTHIVAS GIRI THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 20.12.2023, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: J U D G M E N T The present writ petition has been filedseeking various prayers, including the prayer for awrit of mandamus commanding the respondents to keepin abeyance coercive proceedings pursuant toExt.P13 assessment order pending disposal ofExt.P14 appeal and Ext.P17 stay application, etc.2.The petitioner is an assessee under theprovisions of the Income Tax Act, 1961 (“Act”, forshort) and is engaged in carrying out the businessof an advertising agency under the name and style“Yesgo Advertising Media”. The petitioner did notfile return of its income under Section 139 of theAct for the assessment year 2017-18. As per theinformation made available through AIMS module inITBA system of the Income Tax Department, it wasnoticed that the assessee was involved in hugefinancial transactions during the relevantassessment year, including the contractual receiptsunder Section 194C of Rs.2,31,56,103/-, interest earned during the year under Section 194A ofRs.28,310/-, besides other receipts. The petitioner-assessee had received commission/brockerage of Rs.74,556/-, professional/technicalreceipts of Rs.8,160/-, cash payments for the goodsand services of Rs.1,70,21,696/- and cash depositof Rs.1,85,75,208/-. 3.The petitioner neither filed ITR norfurnished report of audit in prescribed Form beforethe due date as prescribed under the provisions ofSection 44AB of the Act. 4.A notice under Section 148 of the Act wasissued to the petitioner on 31.3.2021 directing himto file return within a period of 30 days from theservice of the notice. Despite receipt of the saidnotice, the petitioner did not file his return ofincome in compliance of the notice under Section148 of the Act. Thereafter, notice dated 16.7.2021under Section 142(1) of the Act was issued. But,no response came from the petitioner in response tothe said notice under Section 142(1) of the Act. 5.The assessment order would disclose thatthough the petitioner was granted severalopportunities to file return and give response tothe notices, but the petitioner failed to do so.In view thereof, best judgment assessment wascarried out and total assessed income wasdetermined as Rs.3,85,42,019/- on which tax hasbeen demanded and order has been passed forproceeding for penalty under Section 271B of theAct. 6.Aggrieved by the said assessment order,the petitioner has filed appeal on 3.8.2022, alongwith an application for stay, which are pendingbefore the 2[nd] respondent. 5.The assessment order would disclose thatthough the petitioner was granted severalopportunities to file return and give response tothe notices, but the petitioner failed to do so.In view thereof, best judgment assessment wascarried out and total assessed income wasdetermined as Rs.3,85,42,019/- on which tax hasbeen demanded and order has been passed forproceeding for penalty under Section 271B of theAct. 6.Aggrieved by the said assessment order,the petitioner has filed appeal on 3.8.2022, alongwith an application for stay, which are pendingbefore the 2[nd] respondent. 7.The petitioner has approached this Courtin the present writ petition as this Court isexercising the parallel jurisdiction with theappellate authority. But, no such jurisdiction canbe exercised under Article 226 of the Constitutionof India. However, it is incumbent upon the appellate authority to decide the stay applicationof the petitioner, at the earliest. 8.In view of the above, the present writ petition is disposed of with direction to the 2[nd]respondent to consider and pass appropriate orderson the stay application, Ext.P17, pending beforeit, in accordance with law, preferably within aperiod of two months. Pending interlocutory application, if any, in the writ petition stands dismissed. Sd/-DINESH KUMAR SINGH JUDGE WP(C) NO. 37397 OF 2023 APPENDIX OF WP(C) 37397/2023 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE NOTICE DATED 31.03.2021 UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMENT YEAR (AY) 2017-2018UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMENT YEAR (AY) 2017-2018 Exhibit P2TRUE COPY OF THE NOTICE DATED 16.07.2021 ISSUED UNDER SECTION 142(1) OF THE ACTISSUED UNDER SECTION 142(1) OF THE ACT Exhibit P3TRUE COPY OF THE ACKNOWLEDGMENT OF THE PETITIONER'S REPLY DATED 18.08.2021 ALONG WITH THE AUDITED BALANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR AY 2017-2018PETITIONER'S REPLY DATED 18.08.2021 ALONG WITH THE AUDITED BALANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR AY 2017-2018 Exhibit P4TRUE COPY OF THE FORM ITR-V FOR AY 2017-20182018 Exhibit P5TRUE COPIES OF THE NOTICE DATED 03.12.2021 ISSUED UNDER SECTION 142(1)ISSUED UNDER SECTION 142(1) Exhibit P6TRUE COPY OF THE ACKNOWLEDGMENT OF THE REPLY THERETO SUBMITTED ON 13.12.2021REPLY THERETO SUBMITTED ON 13.12.2021 Exhibit P7TRUE COPY OF THE NOTICE DATED 24.02.2022 ISSUED UNDER SECTION 142(1)ISSUED UNDER SECTION 142(1) Exhibit P8TRUE COPY OF THE ACKNOWLEDGMENT OF THE REPLY SUBMITTED ON 08.03.2022REPLY SUBMITTED ON 08.03.2022 Exhibit P9TRUE COPY OF THE SCN DATED 02.03.2022Exhibit P10TRUE COPY OF ACKNOWLEDGEMENT TO THE REPLY FILED ON 08.03.2022Exhibit P10TRUE COPY OF ACKNOWLEDGEMENT TO THE REPLY FILED ON 08.03.2022 Exhibit P11TRUE COPY OF THE FINAL SCN-CUM-DAO DATED 22.03.202222.03.2022 Exhibit P12TRUE COPY OF THE ACKNOWLEDGEMENT TO THE REPLY THERETO DATED 24.03.2022REPLY THERETO DATED 24.03.2022 Exhibit P13TRUE COPY OF THE ASSESSMENT ORDER DATED 26.03.2022 ISSUED UNDER SECTION 147 READ WITH SECTION 144 READ WITH SECTION 144B OF THE ACT ALONG WITH THE ACCOMPANYING DEMAND NOTICE DATED 26.03.202226.03.2022 ISSUED UNDER SECTION 147 READ WITH SECTION 144 READ WITH SECTION 144B OF THE ACT ALONG WITH THE ACCOMPANYING DEMAND NOTICE DATED 26.03.2022 Exhibit P14TRUE COPY OF THE APPEAL FILED ON 03.08.2022ALONG WITH ITS ACKNOWLEDGMENT RECEIPTALONG WITH ITS ACKNOWLEDGMENT RECEIPT Exhibit P15TRUE COPY OF THE APPLICATION DATED 16.09.2022, FILED ON 26.09.2022.16.09.2022, FILED ON 26.09.2022. Exhibit P16TRUE COPY OF THE LETTER DATED 30.09.2022 Exhibit P17TRUE COPY OF THE STAY PETITION FILED ON 14.10.2022 WITH RESPECT TO THE ASSESSMENT ORDER AND ACCOMPANYING DEMAND NOTICE14.10.2022 WITH RESPECT TO THE ASSESSMENT ORDER AND ACCOMPANYING DEMAND NOTICE Exhibit P18TRUE COPY OF THE E-MAIL DATED 01.11.2022Exhibit P19TRUE COPIES OF THE EARLY HEARING APPLICATION DATED 27.10.2022Exhibit P19TRUE COPIES OF THE EARLY HEARING APPLICATION DATED 27.10.2022 Exhibit P14TRUE COPY OF THE APPEAL FILED ON 03.08.2022ALONG WITH ITS ACKNOWLEDGMENT RECEIPTALONG WITH ITS ACKNOWLEDGMENT RECEIPT Exhibit P15TRUE COPY OF THE APPLICATION DATED 16.09.2022, FILED ON 26.09.2022.16.09.2022, FILED ON 26.09.2022. Exhibit P16TRUE COPY OF THE LETTER DATED 30.09.2022 Exhibit P17TRUE COPY OF THE STAY PETITION FILED ON 14.10.2022 WITH RESPECT TO THE ASSESSMENT ORDER AND ACCOMPANYING DEMAND NOTICE14.10.2022 WITH RESPECT TO THE ASSESSMENT ORDER AND ACCOMPANYING DEMAND NOTICE Exhibit P18TRUE COPY OF THE E-MAIL DATED 01.11.2022Exhibit P19TRUE COPIES OF THE EARLY HEARING APPLICATION DATED 27.10.2022Exhibit P19TRUE COPIES OF THE EARLY HEARING APPLICATION DATED 27.10.2022 Exhibit P20CIRCULAR DATED 29.12.2021 BEARING REFERENCEDETAILS F.NO.279/MISC/M-102/2021-TTJDETAILS F.NO.279/MISC/M-102/2021-TTJ Exhibit P21TRUE COPY OF THE OFFICE MEMORANDUM IN F.NO.404/72/93-ITCC DATED 29-02-2016F.NO.404/72/93-ITCC DATED 29-02-2016 Exhibit P22TRUE COPY OF JUDGMENT OF THIS HON'BLE COURTIN WPC 28267 OF 2023IN WPC 28267 OF 2023 Exhibit P23TRUE COPY OF JUDGMENT OF THIS HON'BLE COURTIN WPC 28910 OF 2023IN WPC 28910 OF 2023