Sreekandan B, aged 59 years, s/o Bhaskaran, Proprietor, M/s Avani Metal Crusher V. The Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Government of India and Income Tax Officer, Ward 1(2) Thiruvananthapuram and Income Tax Officer, Central Circle, Income Tax Department, Thiruvananthapuram and Deputy Commissioner of Income Tax, Central Circle, Thiruvananthapuram

WA/1281/2022

AI Insights

The case involves Sreekandan B, the proprietor of M/s Avani Metal Crusher, who appealed against the orders of assessment and penalty issued by the Income Tax Department. The High Court of Kerala, in its judgment, directed the appellant to pursue statutory remedies by filing appeals against the contested orders. The court also addressed the appellant's concerns regarding the denial of natural justice and the constitutional validity of Section 270A of the Income Tax Act, leaving these issues open for consideration in appropriate future cases.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 802621 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 26-08-2022
• Assessment Year: misc
• Laws Referred To: Section 270A of the Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: P K R MENON
• Assessee Lawyers: K P PRADEEP; HAREESH; SANAND RAMAKRISHNAN; T T BIJU; T THASMI; M J ANOOPA; SANU MALAKEEL
• Keywords: Assessment Order; Constitutional Validity; Natural Justice; Penalty; Writ Appeal
• Section: 270A

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944 W.A. NO.1277 OF 2022 (AGAINST THE ORDER/JUDGMENT WP(C) 23659/2021 OF HIGH COURT OF KERALA) APPELLANT/WRIT PETITIONER: SREEKANDAN .B, AGED 59 YEARS, S/O.BHASKARAN, PROPRIETOR, M/S AVANI METAL CRUSHER, KOTTACKAL, ANAVOOR, P.O, THIRUVANANTHAPURAM- 695 124, RESIDING AT RODARIKATHU VEEDU, MAMPAZHAKKARA, PERUMPAZHUTHOOR, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN – 695 126 BY ADVS. K.P.PRADEEP HAREESH M.R. SANAND RAMAKRISHNAN T.T.BIJU T.THASMI M.J.ANOOPA SANU S MALAKEEL RESPONDENTS/RESPONDENT: 1 THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI, PIN – 110 001, REPRESENTED BY ITS CHAIRMAN. 2 INCOME TAX OFFICER, WARD 1(2) THIRUVANANTHAPURAM, AAYAKAR BHAVAN, 1ST FLOOR, KOWADIAR P.O, THIRUVANANTHAPURAM, PIN – 695 003. Writ Appeal No.1277 & 1281/2022 2 3 INCOME TAX OFFICER, CENTRAL CIRCLE, INCOME TAX DEPARTMENT, AAYAKAR BHAVAN, 1ST FLOOR, KOWADIAR P.O, THIRUVANANTHAPURAM, PIN – 695 003 4 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, INCOME TAX DEPARTMENT, AAYAKAR BHAVAN, 4TH FLOOR, KOWADIAR P.O, THIRUVANANTHAPURAM, PIN – 695 003 OTHER PRESENT: SR. ADV. P.K.R.MENON. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2022, ALONG WITH WA.1281/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Writ Appeal No.1277 & 1281/2022 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944 WA NO. 1281 OF 2022 AGAINST THE ORDER/JUDGMENTWP(C) 22140/2022 OF HIGH COURT OF KERALA APPELLANT/WRIT PETITIONER: SREEKANDAN B, AGED 59 YEARS, S/O BHASKARAN, PROPRIETOR, M/S AVANI METAL CRUSHER KOTTACKAL, ANAVOOR, P.O, THIRUVANANTHAPURAM- 695 124 RESIDING AT RODARIKATHU VEEDU, MAMPAZHAKKARA, PERUMPAZHUTHOOR, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN – 695 126 BY ADVS. K.P.PRADEEP HAREESH M.R. SANAND RAMAKRISHNAN T.T.BIJU T.THASMI M.J.ANOOPA SANU S MALAKEEL RESPONDENTS/RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI, PIN – 110 001 2 THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, Writ Appeal No.1277 & 1281/2022 4 NEW DELHI, PIN – 110 001, REPRESENTED BY ITS CHAIRMAN 3 INCOME TAX OFFICER, WARD 1(2), THIRUVANANTHAPURAM, AAYAKAR BHAVAN, 1ST FLOOR, KOWADIAR P.O, THIRUVANANTHAPURAM, PIN – 695 003 4 INCOME TAX OFFICER, CENTRAL CIRCLE, INCOME TAX DEPARTMENT, AAYAKAR BHAVAN, 1ST FLOOR, KOWADIAR P.O, THIRUVANANTHAPURAM, PIN – 695,003 5 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, INCOME TAX DEPARTMENT, AAYAKAR BHAVAN, 4TH FLOOR, KOWADIAR P.O, THIRUVANANTHAPURAM, PIN – 695 003 6 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, INCOME TAX DEPARTMENT, AAYAKAR BHAVAN, 1ST FLOOR, KOWADIAR P.O, THIRUVANANTHAPURAM, PIN – 695 003 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2022, ALONG WITH WA.1277/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Writ Appeal No.1277 & 1281/2022 5 JUDGMENT (Dated: 26th August, 2022) S.V.Bhatti, J The appeals are at the instance of the writ petitioner. 2. The writ petitioner challenged the order of assessment and penalty in W.P.(C)Nos.22140 of 2022 & 23659 of 2021, which reads as follows: \"(i) On application of the petitioner, the 4th respondent in W.P(C.). No.23659 of 2021shall issue a legible copy of Ext.p10 to the petitioner. The petitioner shall file such an application within a period of ten days from the date of receipt of a copy of this judgment and the 4th respondent shall issue a legible copy of Ext.P10 order within ten days thereafter; (ii) The period within which the petitioner has to file an appeal against Ext.P10 order before the First Appellate Authority shall be computed only from the date on which a legible copy of Ext.P10 is served to the petitioner as above; (iii) If the petitioner files an appeal against Ext.P10 order, within the statutory time period along with an application for stay, further steps to recover any amount due under Ext.P10 shall be kept in abeyance till a decision is taken on the stay petition by the Appellate Authority; (iv) The penalty order (Ext.P14) impugned in W.P.(C.). No.22140 of 2022, can also be challenged by filing an appeal before the First Appellate Authority. Since the imposition of penalty arises out of the demand in Ext.P10 order of assessment in W.P.(C.). No.23659 of 2021, the limitation for filing an appeal against Ext.P14 order of penalty shall also counted from the date on which a legible copy of Ext.P14 order is Writ Appeal No.1277 & 1281/2022 6 served on the petitioner in terms of the directions issued above; (v) If the petitioner files an appeal against Ext.P14 order within the statutory time period calculated in the manner indicated above, along with an application for stay, the proceedings for recovery of any amount imposed as penalty will be kept in abeyance till a decision is taken on the stay petition by the First Appellate Authority; (vi) The contentions taken by the petitioner regarding the Constitutional validity of Section 270A of the Act are left open to be adjudicated later, if necessary. The writ petition is disposed of as above\". 3. Through the impugned judgment, the writ petitioner is relegated to work out the statutory remedy of appeals against the order of assessment and penalty. We see no reason to take a different view in this behalf. However, having heard the counsel for the petitioner Mr.K.P.Pradeep and learned counsel for the respondent Mr.P.K.R.Menon. We make the following order. 4. The contentions raised against Section 270A of the Act are left open for consideration in an appropriate case/petition. 5. The learned judge has relegated the appellant/assessee to work out the remedy against orders impugned in the writ petition, by filing appeals before the Commissioner of Income Tax (Appeal). A serious Writ Appeal No.1277 & 1281/2022 7 attempt has been made by the learned counsel Mr.K.P.Pradeep to convince us that the element of prejudice suffered by the assessee in denial of reasonable opportunity is not appreciated in the judgment under appeal. We are of the view that the totality of the circumstances are taken note and a view possible is expressed by the learned single judge. In an intra-court appeal, we are not persuaded to interfere and disturb the finding. However, it is required to be observed that a few emphatic observations on denial of principles of natural justice have been recorded by the judgment in appeal. We are of the view that the said opinion expressed by the learned single judge in the judgment shall be read us, having been expressed for the purpose of disposing of the writ petition and shall not be binding on the assessee/appellant to re-agitate these points in the appeal, the assessee is permitted to file before the Commissioner of Income Tax (Appels). 6. The appeals shall be filed within 4 weeks from today. There shall be stay of recovery of the amount demanded pursuant to the assessment and penalty orders pending appeal. The Commissioner of Appeal endeavors to Writ Appeal No.1277 & 1281/2022 8 dispose of the appeal as expeditiously as possible preferably within 4 months from the date of receipt of the copy of the order. The assessee is given liberty to file additional grounds or place such other material, the assessee may be advised in this behalf. It is needless to observe that the Commissioner while disposing of the appeals refers to and records categorical findings on all the additional grounds and additional material brought on record. Both appeals are disposed of as indicated above. Hand over Sd/- S.V.BHATTI, JUDGE Sd/- BASANT BALAJI, JUDGE ss "