KERALA STATE SERVICE PENSIONERS CO-OPERATIVE SOCIETY V. THE INCOME TAX OFFICER

WP(C)/26015/2023

AI Insights

The case involves the Kerala State Service Pensioners Co-operative Society Ltd, which filed a writ petition against the Income Tax Officer and other respondents, challenging the dismissal of their appeal by the Appellate Tribunal for non-prosecution. The petitioner argued that their appeal was dismissed without consideration of the merits due to issues with their email communication, which they claimed was operational but not recognized by the Tribunal. The respondents defended the dismissal, suggesting that the petitioner had an alternative statutory remedy by filing a Second Appeal. The court, referencing a previous decision, ruled that the Appellate Tribunal should not dismiss an appeal for non-prosecution but must consider it on its merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 674828 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 08-08-2023
• Assessment Year: misc
• Other Referred Cases: Balaji Steel Re-Rolling Mills v. Commissioner of Central Excise and Customs [2015 AIR SCW 426], Uzhuva Service Co-operative Bank v. Income Tax Officer & Ors. [W .A.No.1257/2020]
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: C A JOJO
• Keywords: Appeal Dismissal; Assessment Year 2015-16; Income Tax; Non-prosecution
• Section: 80P; 40A(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 8TH DAY OF AUGUST 2023 / 17TH SRAVANA, 1945 WP(C) NO. 26015 OF 2023 PETITIONER: KERALA STATE SERVICE PENSIONERS CO-OPERATIVE SOCIETY LTD, SUNNY JUNCTION BUILDING, CHALAKKUDY, THRISSUR- REPRESENTED BY ITS SECRETARY, PIN – 680307 BY ADVS. C.A.JOJO SWATHY S. RESPONDENTS: 1 THE INCOME TAX OFFICER WARD-2(1), AYAKAR BHAVAN, NEAR SAKTHAN STAND, THRISSUR, PIN – 680001 2 THE COMMISSIONER OF INCOME TAX (APPEALS) AYAKAR BHAVAN, NEAR SAKTHAN STAND, THRISSUR, PIN – 680901 3 THE COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI, PIN – 110001 OTHER PRESENT: SRI JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.26015/2023 -:2:- Dated this the 8th day of August,2023 J U D G M E N T The writ petition is filed assailing Ext P4 order passed by the third respondent dismissing the appeal filed by the petitioner for non-prosecution. 2. The petitioner’s case is that, it is the Co-operative Society of retired employees. The petitioner had filed annual return on 29.10.2015, declaring a total income of Rs.20,570/-. The petitioner was ignorant that it had to show the income providing credit facility to its members. Later, the petitioner furnished all the requisite details to the first respondent. The petitioner was assessed, for the assessment year, 2015-16 for an amount of Rs.11,75,409/- at a high pitched rate, without giving benefit of Sections 80P & 40A(3) of the Income Tax Act, 1961. The petitioner had challenged the order W.P.(C)No.26015/2023 -:3:- through a statutory appeal before the second respondent. The appeal was taken up for consideration by the third respondent. Although notice was sent by e-mail to the petitioner, as per the version of the third respondent, the petitioner’s e-mail was not operational for a long time. Hence, the petitioner could not submit its argument notes before the appellate authority. The third respondent, without considering the matter on merits, by the impugned Ext P4 order, has rejected the appeal for non-prosecution. Ext P4 clearly reveals that the third respondent has not considered any of the contentions raised by the petitioner, which is in violation of the law laid down by the Hon'ble Supreme Court in Balaji Steel Re-Rolling Mills v. Commissioner of Central Excise and Customs [2015 AIR SCW 426]. The entire proceedings leading W.P.(C)No.26015/2023 -:4:- to Ext P4 is vitiated and unsustainable in law. Hence, the writ petition. 3. Heard; Sri. C.A.Jojo, the learned counsel appearing for the petitioners and Sri.Jose Joseph, the learned standing counsel appearing for the respondents. 4. Sri. C.A.Jojo, placed reliance on the decision of the Division Bench of this Court in Uzhuva Service Co-operative Bank v. Income Tax Officer& Ors. [W .A.No.1257/2020] to fortify his contention that the Appellate Tribunal shall not be dismiss an appeal for non-prosecution and is obliged to consider the matter on its merits. Thus, according to him, Ext P4 is bad in the eyes of law and is liable to be set aside. 5. Sri.Jose Joseph, on the other hand, defended Ext P4 order and submitted that the petitioner has an alternative statutory remedy, by filing a Second Appeal W.P.(C)No.26015/2023 -:5:- before the next forum. Hence, this Court may not entertain the writ petition. 6. The short point is whether Ext P4 order is to be interfered by this Court. 7. A reading of Ext P4 order reveals that the Appellate Tribunal has not considered the matter on merits, instead has dismissed the appeal for default, on the finding that, despite multiple opportunities being afforded by the petitioner with hearing dates on 13.01.2021, 12.04.2023 & 22.05.2023, the petitioner has not availed the benefit. 8. The Division Bench of this Court in Uzhuva Service Co-operative Bank (supra), after referring to the decision of the Hon'ble Supreme Court in Balaji Steel Re-Rolling Mills (supra) has categorically laid down the law that the Appellate Tribunal shall not W.P.(C)No.26015/2023 -:6:- dismiss an appeal for non-prosecution, instead has to decide the matter on its merits. 9. On an overall appreciation of the pleadings and materials on record, I am of the definite view that Ext P4 order is passed against the principles laid down in Uzhuva Service Co-operative Bank (supra) and is hence liable to be quashed. At the same time, I make it clear that the petitioner has to be more vigilant in verifying its e-mail address and take note of the date fixed by the third respondent for hearing of Ext P3 appeal. Resultantly, in exercise of the plenary powers of this Court under Article 226 of the Constitution of India, I order the writ petition as follows: (i) Ext P4 order is set aside. (ii) The third respondent is directed to re-consider Ext P3 appeal in accordance with law and on W.P.(C)No.26015/2023 -:7:- its merits, after affording the petitioner an opportunity of being heard. (iii) The third respondent shall send an e-mail to the registered e-mail of the petitioner fixing the date of hearing of Ext P3 appeal. (iv) It would be up to the petitioner to verify the notice sent by the third respondent and be ready for arguments on the date fixed by the third respondent. (v) Until such time orders are passed on Ext P3, all further proceedings pursuant to Ext P5 notice shall stand deferred. Sd/- C.S.DIAS,JUDGE DST/08.08.23 //True copy// P .A.To Judge W.P.(C)No.26015/2023 -:8:- APPENDIX PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE ASSESSMENT ORDER DATED 08-09-2017 ISSUED BY THE 1STRESPONDENT EXHIBIT P2 A TRUE COPY OF THE DEMAND NOTICE DATED 08- 09-2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT P3 A TRUE COPY OF THE APPEAL FOR AY 2015-16 DATED 07-10-2017 FILED BEFORE THE 2ND RESPONDENT EXHIBIT P4 A TRUE COPY OF THE APPELLATE ORDER U/S 250 FOR AY 2015-16 DATED 29-05-2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P5 A TRUE COPY OF THE DEMAND NOTICE DATED 07.07.2023 ISSUED BY THE 1ST RESPONDENT RESPONDENTS’ EXHIBITS: NIL "