Wp(C)/9962/2009 Of K.s.nandakumar v. Income Tax Officer, Ward-2, Kollam And

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 9962 of 2009(M) ------------------------------------- PETITIONER(S): ---------------------- K.S. NANDAKUMAR, PROPRIETOR, VYSALI TEXTILES, MUKKADA, KOLLAM. BY ADV. SRI.DALE P.KURIEN RESPONDENT(S): -------------------------- 1. INCOME TAX OFFICER, WARD - 2, KOLLAM. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), THIRUVANANTHAPURAM. BY STANDING COUNSEL SRI.JOSE JOSEPH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ W.P.(C) No. 9962 of 2009-M ---------------------------------------------- Dated, this the 7[th] day of April, 2009 J U D G M E N T The prayers in the writ petition is to call for therecords of the case in Ext.P5 by way of issuing a writ ofcertiorari and to direct the Commissioner of Income Tax(Appeal), the 2[nd] respondent, to keep in abeyance all furtherproceedings in Ext.P5 waiting for a final decision in Ext.P3appeal. Petitioner is an assessee under the Income Tax Act,1961 (“Act” for short). Ext.P1 is the assessment order dated29.12.2006. Petitioner carried the matter in appeal. Theappeal is partly allowed. According to the petitioner, petitionercarried the matter in further appeal before the Income TaxAppellate Tribunal vide Ext.P3 appeal memo. It is stated thatin the course of appeal proceedings, penalty proceedingsunder Sec.271 (1) ( C) for concealing income has beeninitiated. Ext.P4 is the order imposing penalty on thepetitioner. Ext.P5 is the statutory appeal preferred before the2[nd] respondent. It is stated that the appeal before the 2[nd]respondent is pending. It is not yet numbered and listed. WPC No. 9962/2009 -2- The prosecution launched against the petitioner has beenstayed by this court by Ext.P6 judgment. It is stated that thepetitioner has filed an early posting petition for hearing theassessment appeal before the Appellate Tribunal. 2. I heard the learned counsel for the petitionerand learned standing counsel appearing on behalf of therespondents. Learned counsel for the petitioner points outthat under Sec.271 (1) ( C) of the Act penalty can be imposedonly when the facts mentioned in clauses a to d areestablished in the course of proceedings under the Act. Inotice that the notice for imposing penalty is on the same dateas the date on which the assessment order is passed. Learnedcounsel for the respondent pointed out that they areindependent proceedings. I would think that it will beconducive to the interest of justice that the penalty appeal(Ext.P5) is disposed of after the disposal of the appeal filedbefore the Income Tax Appellate Tribunal. The writ petition isdisposed of as follows: There will be a direction to the 2[nd] respondent totake up Ext.P5 appeal and dispose of the same only after a WPC No. 9962/2009 -3- decision is taken in Ext.P3 appeal by the Income Tax AppellateTribunal. It is open to the petitioner and also the respondentsto co-operate and see that Ext.P3 appeal is disposed of at theearliest. MS (K.M.JOSEPH) JUDGE.