Wp(C)/40276/2022 Of Gomathy Jalaja Nair v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 6 DAY OF JANUARY 2023 / 16TH POUSHA, 1944 WP(C) NO. 40276 OF 2022 PETITIONER: GOMATHY JALAJA NAIRAGED 58 YEARSTHIRUVANANDAPURAM, PIN - 695040BY ADVS.V.P.NARAYANAN "MOHANAN" T C 55/294, KAIMANAM, ALAN PRIYADARSHI DEV RESPONDENTS: 1THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 2, AYAKAR BHAVAN, ANNEXE KOWDIAR, THIRUVANANDAPURAM, PIN - 695003 2THE COMMISSIONER OF INCOME TAX (APPEALS) NATIONASL FACELESS APPEAL CENTRE, INCOME TAX DEPARTMENT, MINISTRY I OF FINANCE, JAWAHARLAL STADIUM, DELHI, PIN - 110003 ADV. JOSE JOSEPH -STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 6[th] day of January, 2023 Petitioner suffered Exts.P2 to P4 orders of assessment,for assessment years 2004-2005, 2005-2006 and 2007-2008under the provisions of the Income Tax Act, 1961. Thepetitioner has filed appeals before the First AppellateAuthority along with applications for stay and condonation ofdelay. These appeals and applications for stay andcondonation of delay are produced along with the writpetition. 2.The learned senior counsel appearing for thepetitioner on the instructions of Adv.V.P.Narayanan wouldsubmit that, the petitioner has now been issued with Ext.P14demand, pending consideration of the matter by the FirstAppellate Authority. It is submitted that the imposition ofpenalty is also proposed. 3.Sri.Jose Joseph, the learned counsel appearing for the respondents Department would submit that since theassessment orders (Exts.P2 to P4) were issued followingremand by the Tribunal through Ext.P1 order and considering that the assessment was completed following a search, theappeals filed by the petitioner will have to be heard by theJurisdictional Appellate Authority and not by the NationalFaceless Appeal Centre. It is submitted that, the JurisdictionalAppellate Authority may be directed to consider and passorders on the applications for stay and the application forcondonation of delay in the appeals filed against Exts.P2 to P4assessment orders within a time frame. 4.Having heard the learned senior counsel appearing for the petitioner, and the learned counsel appearing for therespondent Department, this writ petition will stand disposedof directing that, if the petitioner files copies of the appealalready filed by the petitioner along with copies of theapplication for condonation of delay and application for staybefore the Jurisdictional Appellate Authority [TheCommissioner of Income Tax (Appeals), Panampilly Nagar,Ernakulam] within a period of two weeks from today, the saidAuthority shall consider those appeals as appeals filed beforeit on the day the appeals were filed before the NationalFaceless Appeals Centre and shall consider the application forcondonation of delay and the application of stay afteraffording to the petitioner an opportunity of being heard. Till such time the orders are passed on the applications of condonation of delay and stay, any demand pursuant toExts.P2 to P4 orders of assessment shall be kept in abeyance.Steps for imposition of penalty shall also be kept in abeyancetill a decision is taken on the stay petitions. 5.It is directed that the petitioner does not presentthe appeals filed as directed above before the JurisdictionalAppellate Authority within a period of two weeks from today,the petitioner will lose the benefit of this judgment. It is alsomade clear that, the Jurisdictional Appellate Authority needsto consider the appeals and the applications for stay onmerits, only if it is decides to condone the delay in filing theappeals. The writ petition is disposed of as above. Sd/- GOPINATH P. JUDGE APPENDIX OF WP(C) 40276/2022 condonation of delay and stay, any demand pursuant toExts.P2 to P4 orders of assessment shall be kept in abeyance.Steps for imposition of penalty shall also be kept in abeyancetill a decision is taken on the stay petitions. 5.It is directed that the petitioner does not presentthe appeals filed as directed above before the JurisdictionalAppellate Authority within a period of two weeks from today,the petitioner will lose the benefit of this judgment. It is alsomade clear that, the Jurisdictional Appellate Authority needsto consider the appeals and the applications for stay onmerits, only if it is decides to condone the delay in filing theappeals. The writ petition is disposed of as above. Sd/- GOPINATH P. JUDGE APPENDIX OF WP(C) 40276/2022 PETITIONER'S EXHIBITS : EXHIBIT-P1TRUE COPY OF COMMON ORDER IN ITA NOS 42,43 &44/C/2019 DATED 22.5.2019 BY ITAT KOCHI BENCH44/C/2019 DATED 22.5.2019 BY ITAT KOCHI BENCHEXHIBIT-P2TRUE COPY OF ASSESSMENT ORDER DATED 30-9-2021 FOR AY 2004-052021 FOR AY 2004-05EXHIBIT-P3TRUE COPY OF ASSESSMENT ORDER FOR AY 2005-06DATED 30-9-2021DATED 30-9-2021EXHIBIT-P4TRUE COPY OF ASSESSMENT ORDER DATED 30-9-2021 FOR AY 2007-082021 FOR AY 2007-08EXHIBIT-P5TRUE COPY OF APPEAL MEMO FILED FOR AY 2004-05 DATED 26.11.202105 DATED 26.11.2021 EXHIBIT-P6TRUE COPY OF STAY APPLICATION DATED 25.10.202125.10.2021EXHIBIT-P7TRUE COPY OF DELAY CONDONATION PETITION DATED 12.11.2021 FOR AY 2004-05DATED 12.11.2021 FOR AY 2004-05EXHIBIT-P8TRUE COPY OF MEMO OF APPEAL DATED 27.11.2021FOR AY 2005-06FOR AY 2005-06 EXHIBIT-P9TRUE COPY OF STAY PETITION FOR AY 2005-06 DATED 25.10.2021DATED 25.10.2021EXHIBIT-P10TRUE COPY OF DELAY CONDONATION PETITION DATED 12.11.2021 FOR AY 2005-06DATED 12.11.2021 FOR AY 2005-06 EXHIBIT-P11TRUE COPY OF APPEAL MEMO FOR AY 2007-08 DATED 27.11.2021DATED 27.11.2021 EXHIBIT-P12TRUE COPY OF STAY PETITION FOR AY 2007-08 DATED 25.10.2021DATED 25.10.2021 EXHIBIT-P13TRUE COPY OF DELAY CONDONATION PETITION DATED 12.11.2021 FOR AY 2007-08DATED 12.11.2021 FOR AY 2007-08 EXHIBIT-P14TRUE COPY OF THE NOTICE DATED 2.12.2022 ISSUED BY THE FIRST RESPONDENTISSUED BY THE FIRST RESPONDENT