M/S. D.C.MILLS PVT.LTD., V. THE COMMISSIONER OF INCOME TAX (APPEALS),

WP(C)/27614/2024

AI Insights

M/s. D.C. Mills Pvt. Ltd. filed a writ petition against the penalty imposed by the Income Tax Department under Section 270A of the Income Tax Act, 1961, for the assessment year 2017-18. The petitioner contested the penalty of Rs.7,37,55,890, which was based on an incorrect loss return. After the penalty was upheld on appeal, the petitioner approached the Income Tax Appellate Tribunal, which is currently considering the matter along with a stay petition and an application for condonation of delay. The petitioner sought the High Court's intervention to prevent immediate recovery proceedings during the Tribunal's deliberations.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 746925 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-08-2024
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: V S AFSAL KHAN; V A SHAJI
• Keywords: Assessment Year 2017-18; Condonation of delay; Income Tax; Penalty; Stay Petition
• Section: 270A; 254(2A)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 5TH DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 WP(C) NO. 27614 OF 2024 PETITIONER/S: M/S. D.C.MILLS PVT.LTD., REGD. OFFICE BUILDING NO.134/1, VALAVANADU, KALAVOOR.P.O, ALAPPUZHA DISTRICT, REPRESENTED BY ITS MANAGER R.ANIL KUMAR, PIN - 688522 BY ADVS. V.S.AFSAL KHAN V.A.SHAJI RESPONDENT/S: 1 THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS ASSESSMENT CENTRE, INCOME TAX DEPARTMENT, NEW DELHI-, PIN - 110034 2 THE ASSISTANT COMMISSIONER OF INCOME TAX, NATIONAL FACELESS ASSESSMENT CENTER, INCOME TAX DEPARTMENT, NEW DELHI, PIN - 110034 3 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE, INCOME TAX DEPARTMENT, WARD 1 & TPS, ALAPPUZHA, PIN - 688501 4 JURISDICTIONAL CHIEF COMMISSIONER OF INCOME TAX , INCOME TAX DEPARTMENT, ERNAKULAM, KOCHI, PIN – 682018 SRI. JOSE JOSEPH, SC, IT DEPARTMENT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27614 OF 2024 2 JUDGMENT Petitioner suffered an order of assessment for the assessment year 2017-18 under the provisions of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). The loss returned by the petitioner was found to be incorrect, on account of which penalty proceedings were initiated against the petitioner. Ext.P10 order of penalty dated 07.08.2021 was issued, imposing on the petitioner the liability to pay penalty (under Section 270A of the Act) for a sum of Rs.7,37,55,890/-. The petitioner filed an appeal against Ext.P10 order of penalty which was dismissed by Ext.P13 order. The petitioner is now before the Income Tax Appellate Tribunal by filing a Second Appeal, which is stated to be pending consideration of the Income Tax Appellate Tribunal along with a stay petition and an application for condonation of delay . The petitioner apprehends that recovery proceedings may be initiated to recover the amount of penalty, pending consideration of the matter by the Income Tax Appellate Tribunal. 2. Learned counsel appearing for the petitioner submits that, pending consideration of the stay petition and the application for condonation of delay, the recovery proceedings WP(C) NO. 27614 OF 2024 3 may be kept in abeyance. 3. Heard the learned Senior Standing Counsel appearing for the Department also. 4. Having heard the learned counsel appearing for the petitioner and the learned Senior Standing Counsel appearing for the Income Tax Department and considering the limited nature of relief now sought for by the petitioner, this writ petition will stand disposed of, directing the Income Tax Appellate Tribunal, Kochi Bench to consider and pass orders on the delay petition and also on the stay petition filed in Ext.P17 appeal, after affording an opportunity of hearing to the petitioner, within a period of three months from the date of receipt of a certified copy of this judgment. Till such time as orders are passed as directed above, any proceeding for recovery of any amount of assessment imposed on the petitioner for the assessment year 2017-18 shall remain suspended. It is made clear that the Tribunal needs to pass orders on the application for stay on merits only if it decides to condone the delay in filing the appeal. It is also made clear that, it will be open to the Income Tax Appellate Tribunal to consider the issue of maintainability of the stay petition on account of the failure to WP(C) NO. 27614 OF 2024 4 make a pre-deposit as contemplated by the Proviso to Sub Section (2A) of Section 254 of the Act. Sd/- GOPINATH P. JUDGE ajt WP(C) NO. 27614 OF 2024 5 APPENDIX OF WP(C) 27614/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE OF COIR AWARD 2007-2008 Exhibit P2 TRUE COPY OF THE EXTRACT OF POSSESSION NOTICE OF THE STATE BANK OF INDIA. Exhibit P3 TRUE COPY OF THE RELEVANT PART OF THE ASSESSMENT ORDER DATED 26.12.2019 ISSUED BY THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE NOTICE DATED 26.12.2019 SERVED BY THE 3RD RESPONDENT ITS REGISTERED MAIL ID. Exhibit P5 TRUE COPY OF THE LETTER DATED 6.1.2021 ISSUED BY THE 3RD RESPONDENT Exhibit P6 : TRUE COPY OF THE REPLY DATED 22.1.2021 BY THE COMPANY BEFORE THE 3RD RESPONDENT. Exhibit P7 TRUE COPY OF THE RECTIFICATION ORDER DATED 13.4.2021. Exhibit P8 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 3.5.2021 FOR PENALTY UNDER SECTION 270A OF THE INCOME TAX ACT, 1961 ISSUED BY THE 2ND RESPONDENT. Exhibit P9 TRUE COPY OF THE ORDER G.O.(RT)NO.459/2021/DMD DATED 7.6.2021. Exhibit P10 TRUE COPY OF THE ORDER DATED 7.8.2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P11 TRUE COPY OF THE LETTER NO.ITBA/COM/F/17/2021-22/1036218070(1) DATED 7.10.2021 ISSUED BY THE 3RD RESPONDENT Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 26.10.2021 IN W.P.(C)NO.22855/2021 OF THIS HON'BLE HIGH COURT OF KERALA, ERNAKULAM Exhibit P13 TRUE COPY OF THE ORDER DATED 18.3.2024 U/S.250 OF INCOME TAX ACT, 1961 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P14 TRUE COPY OF THE DISCHARGE SUMMARY OF THE AMRITA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH CENTER, EDAPPALLY, ERNAKULAM DATED 27.6.2019. Exhibit P15 TRUE COPY OF THE DEATH CERTIFICATE OF ABBAS.P.M OF THE MARARIKKULAM NORTH PANCHAYATH DATED 12.7.2021 WP(C) NO. 27614 OF 2024 6 Exhibit P16 TRUE COPY OF THE REQUEST FOR MISSING ID DATED 7.6.2024. Exhibit P17 TRUE COPY OF THE APPEAL NO. NIL DATED 29.6.2024 FILED BY THE COMPANY BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. Exhibit P18 TRUE COPY OF THE STAY PETITION FILED BY THE COMPANY BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH DATED 9.7.2024 Exhibit P19 TRUE COPY OF THE PETITION TO CONDONE THE DELAY FILED BY THE COMPANY BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH DATED 18.6.2024 Exhibit P20 TRUE COPY OF THE ACKNOWLEDGEMENT OF E-FILING OF INCOME TAX APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. "