Neerikode Service Co-operative Bank Ltd. V. Income Tax Officer, Ward-3, Aluva and The Principal Chief Commissioner of Income Tax and Income Tax Appellate Tribunal, Cochin Bench

WP(C)/9268/2024

AI Insights

The case involves M/s. Neerikode Service Co-operative Bank Ltd., which challenged the order of the Income Tax Appellate Tribunal regarding the delay in filing an appeal against an appellate order. The Tribunal had initially considered the appeal to be filed with a delay of 317 days. However, the petitioner argued that the delay should be calculated from a later date, extending the limitation period due to Supreme Court orders, which would reduce the delay to 156 days. The Department contended that even with this calculation, the delay was substantial and the Tribunal had provided sufficient reasons for not condoning the delay. The High Court found merit in the petitioner's argument, noting that the Tribunal's consideration of delays in earlier proceedings was not relevant to the current application for condonation of delay.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 795449 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 13-03-2024
• Assessment Year: misc
• Other Referred Cases: Suo Motu Writ Petition (C) No.3 of 2020
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; CYRIAC TOM
• Assessee Lawyers: S RAJ
• Keywords: Condonation of delay; Delay in filing; Income tax appellate tribunal; Limitation Period
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 13TH DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 WP(C) NO. 9268 OF 2024 PETITIONER: M/S.NEERIKODE SERVICE CO-OPERATIVE BANK LTD., NEERIKODE P.O, ALANGAD, ERNAKULAM, REPRESENTED BY ITS SECRETARY KAVITHA V.A., PIN – 683 511. BY ADV S.ARUN RAJ RESPONDENTS: 1 INCOME TAX OFFICER, WARD-3, ALUVA, KAP COMMERCIAL COMPLEX, RS ROAD, ALUVA, ERNAKULAM, PIN – 683 101. 2 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, ERNAKULAM, PIN – 682 018. 3 INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KENDRIYA BHAVAN, KAKKANAD, ERNAKULAM, COCHIN, PIN – 682 030. BY ADV JOSE JOSEPH, SC, INCOME TAX DEPARTMENT SRI.CYRIAC TOM, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 9268 OF 2024 2 JUDGMENT The petitioner has approached this Court challenging the common order in ITA No.954/Coch/2022 and Stay Application No.34/2023 filed in that appeal, on the ground of delay. A reading of Ext.P6 order of the Tribunal will indicate that the Tribunal proceeded on the basis that the appeal was filed with a delay of 317 days. 2. The learned counsel appearing for the petitioner would submit that considering the orders passed by the Supreme Court in Miscellaneous Application No.21 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Motu Writ Petition (C) No.3 of 2020, the period of limitation for filing an appeal against Ext.P3 order would stand extended till 31.05.2022. It is submitted that if the delay is calculated from that date, the delay is only 156 days. 3. The learned Standing Counsel for the Department would submit that even if the delay is calculated to be only 156 days, there is substantial delay in filing the appeal. It is submitted that the Tribunal has given sufficient reason as to why the application for condonation of delay could not be allowed. It is submitted that in such circumstances, the challenge to Ext.P6 order is not sustainable. WP(C) NO. 9268 OF 2024 3 4. The learned counsel appearing for the petitioner, in reply would submit that the factors considered by the Tribunal indicate that the Tribunal had considered the delay in the proceedings before the first appellate authority and the same may not be germane for consideration of an application for condonation of delay in filing an appeal against the first appellate order. Having heard the learned counsel for the petitioner and the learned counsel appearing for the Department, I am of the view that there is considerable merit in the contention taken by the learned counsel appearing for the petitioner. The delay or non co-operation of the petitioner in the proceedings before the first appellate authority is not germane to the consideration of an application for condonation of delay by the appellate Tribunal. That apart, it must be noticed that the petitioner had time till 31.05.2022 to file an appeal against Ext.P3 order considering the orders passed by the Supreme Court in Miscellaneous Application No.21 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Motu Writ Petition (C) No.3 of 2020. If that is taken into consideration, the delay in filing the appeal is only 156 days and not 317 days as indicated in the order of the Tribunal. In that view of the matter, I am inclined to allow this writ petition by quashing WP(C) NO. 9268 OF 2024 4 Ext.P6 order. The delay of 156 days in filing ITA No.954/Coch/2022 will stand condoned. ITA No.954/Coch/2022 and S.A.No.34/2023 filed in the said appeal shall stand restored to the file of the Income Tax Appellate Tribunal. The same shall be considered and disposed of on merits, in accordance with the law, after affording an opportunity of hearing to both sides. Sd/- GOPINATH P. JUDGE DK WP(C) NO. 9268 OF 2024 5 APPENDIX OF WP(C) 9268/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ASSESSMENT ORDER 31- 12-2019 U/S 143 (3) OF THE ACT PASSED BY THE 1ST RESPONDENT FOR THE AY 2017-18 Exhibit P2 A TRUE COPY OF THE FIRST APPEAL FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) FOR THE AY 2017-18 ON 8-1-2020 Exhibit P3 A TRUE COPY OF THE FIRST APPELLATE ORDER DATED 26-10-2021 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) FOR THE AY 2017-18 Exhibit P4 A TRUE COPY OF THE APPEAL FILED ON 5-11- 2022 ALONG WITH THE DELAY CONDONATION AFFIDAVIT AND PETITION Exhibit P5 A TRUE COPY OF THE STAY PETITION IN EXHIBIT P-4 APPEAL FILED ON 5-11-2022 FOR THE AY 2017-18 BEFORE THE 3RD RESPONDENT Exhibit P6 A TRUE COPY OF THE ORDER DATED 31-10-2023 IN ITA NO.954/COCH/2023 PASSED BY THE 3RD RESPONDENT, INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH FOR THE AY 2017-18 "