JIJUJOSEPH JOSEPH V. INCOME TAX OFFICER

WA/1431/2021

AI Insights

The case involves Jiju Joseph, the appellant, who challenged a penalty order under Section 270A of the Income Tax Act, 1961, through a writ petition. The penalty was imposed following an assessment order (Ext.P1) for the assessment year 2018-19, which the appellant contested. The appellant requested to keep the penalty proceedings in abeyance pending the appeal of the assessment order, which was not considered, leading to the writ petition. The High Court of Kerala, after considering the circumstances and the arguments presented, decided to stay the penalty order temporarily and directed the Commissioner of Income Tax (Appeals) to expedite the appeal process.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 751674 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 15-11-2021
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: ANIL NAIR; TELMA RAJU; SANGEETH JACOB; CHRISTINA PAUL; EDATHARA KRISHNAN; ARAVIND SREEKUMAR
• Keywords: Abeyance of penalty proceedings; Assessment Order; Penalty order; Writ jurisdiction
• Section: 143(3); 270A; 143(3A); 143(3B)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 WA NO. 1431 OF 2021 AGAINST THE ORDER/JUDGMENT IN WP(C) 21456/2021 OF HIGH COURT OF KERALA, ERNAKULAM APPELLANT/S: JIJUJOSEPH JOSEPH PACHAKKANAM HOUSE, PULIYANMALA P.O, IDUKKI, IDUKKI DISTRICT-685 515, KERALA BY ADVS. ANIL D. NAIR TELMA RAJU SANGEETH JOSEPH JACOB CHRISTINA ANNA PAUL EDATHARA VINEETA KRISHNAN ARAVIND SREEKUMAR RESPONDENT/S: INCOME TAX OFFICER NATIONAL FACEESS ASSESSMENT CENTRE, NEW DELHI-110003 OTHER PRESENT: SC CHRISTOPHER ABRAHAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 1431 OF 2021 -2- J U D G M E N T S.V.Bhatti,J. Writ petitioner is the appellant. The appellant filed W.P.(C) No.21456 of 2021 assailing the order of penalty dated 25.09.2021, marked as Ext.P7, made under Sec.270A of the Income Tax Act, 1961 (for short, 'the Act'). The circumstances referred to and relied on by the appellant are briefly stated thus: 2. The respondent through Ext.P1 order dated 26.03.2021, finalised the return filed by the assessee for the assessment year 2018-19 under Sec.143(3) read with Sections 143(3A) and 143(3B) of the Act. The assessee filed Ext.P2 appeal against Ext.P1 assessment order before Commissioner of Income Tax (Appeals) and the appeal is pending as on date. During the pendency of the appeal, the assessee received Ext.P3 notice dated 26.03.2021 and called upon the assessee to file reply if any. Ext.P5 show cause notice incorporates the following clauses: WA NO. 1431 OF 2021 -3- “6. In case you had requested for keeping the penalty proceedings in abeyance, you are requested to upload a copy of the said reply. 7. In case no response is received by the given time and date, the penalty order shall be passed without the benefit of your explanation.” 3. The assessee through Ext.P4 reply has requested to keep the penalty proceedings in abeyance as the appeal filed against the assessment order in Ext.P1 is still pending before the Commissioner of Income Tax (Appeals). Now the grievance of assessee is that the penalty order in Ext.P7 has been made without firstly looking into the reply given by the assessee, secondly, not accepting the prayer of assessee, for keeping the penalty proceeding in abeyance. 4. Hence, it is stated that the writ jurisdiction of this Court under Article 226 of the Constitution of India is invoked for challenging the order in Ext.P7. The learned Single Judge through the judgment impugned in the appeal declined to exercise jurisdiction under Article 226 of Constitution of India and dismissed the writ petition. Hence the appeal. WA NO. 1431 OF 2021 -4- 5. We have taken note of the reasons given by the learned Single Judge and prima facie, we are of the view that the reasons noted for not entertaining the writ petition are available and no exception could be taken to the proceedings. In other words, the reasons stated by the learned Single Judge for not exercising the discretionary jurisdiction hardly need interference in this intra-court appeal. 6. After the order is dictated, the learned counsel Mr. Anil D. Nair, argued that the effort of assessee is to first work out the grievances against the assessment order in Ext.P1 and the assessee if is successful, penalty initiated under Sec.270A of the Act becomes redundant or unavailable. To avoid repetition of doing the same job twice over, the assessee requests to keep the penalty proceeding in abeyance during the pendency of appeal in Ext.P2. Under these circumstances, to avoid multiplicity of proceedings, this Court considers directing the Commissioner of Income Tax (Appeals) to consider and dispose of Ext.P2 appeal WA NO. 1431 OF 2021 -5- expeditiously and in the interregnum to stay the operation of Ext.P7 order. 7. We have heard Mr.Christopher Abraham on the alternative submission of Mr. Anil D Nair. He states that within reasonable time the appeal could be directed to be disposed of by the Commissioner of Income Tax (Appeals). We are of the view that a solution to the issues canvassed both in assessment and penalty orders could be finalised once Ext.P2 is considered and disposed of expeditiously by the Commissioner of Income Tax (Appeals) and in the meantime, the appropriate orders are passed in Ext.P7. Hence, writ appeal stands disposed of as follows: a) The appellant is given liberty to file along with a memo the instant judgment before the Appellate Authority within three weeks from today. b) The Appellate Authority considers and disposes of appeal pending in Ext.P2, as expeditiously as possible, WA NO. 1431 OF 2021 -6- preferably within three months from the date of filing of memo by the appellant. c) With a view to prevent recovery of penalty covered by Ext.P7 assessee and the Department are directed to maintain status quo as on date vis-à-vis Ext.P7, for fifteen weeks from today. Writ appeal is disposed of accordingly. Sd/- S.V.BHATTI JUDGE Sd/- BASANT BALAJI JUDGE JS "