VATTIYOORKAVU SERVICE CO-OPERATIVE BANK LIMITED V. THE INCOME TAX OFFICER

WP(C)/1341/2019

AI Insights

The case involves Vattiyoorkavu Service Co-operative Bank Limited, which filed a writ petition against the Income Tax Officer and the Commissioner of Income Tax (Appeals) due to the dismissal of their statutory appeal for a delay of 23 days. The appellate authority dismissed the appeal as the petitioner did not file a delay condonation petition. The petitioner argued that such a petition was filed, but it lacked a departmental seal to prove its submission. The court, acknowledging the potential oversight by the petitioner's counsel and the minor nature of the delay, remanded the case to the appellate authority to consider the delay condonation petition if filed within the specified time.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 697657 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 06-02-2019
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: K V M PANDALAI
• Assessee Lawyers: T R HARIKUMAR; ARJUN RAGHAVAN
• Keywords: Co-operative Bank; Delay condonation; Statutory Appeal; Technicality
• Section: 271(1)(c); 156

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940 WP(C).No. 1341 of 2019 PETITIONER/S: VATTIYOORKAVU SERVICE CO-OPERATIVE BANK LIMITED NO. 1652, REPRESENTED BY ITS SECRETARY VATTIYOORKAVU P.O, THIRUVANANTHAPURAM DISTRICT 695 013. BY ADVS. SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN RESPONDENT/S: 1 THE INCOME TAX OFFICER,WARD-2 (1), OFFICE OF THE JOINT COMMISSIONER OF INCOME TAX, RANGE-2, 1ST FLOOR, AYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM DISTRICT 695 003. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), THIRUVANANTHAPURAM 695 003. SC SRI. K.V. M. PANDALAI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1341 of 2019 2 JUDGMENT The petitioner, an assessee, filed a statutory appeal before the 2nd respondent with a delay of 23 days. The delay was not condoned. Aggrieved, the petitioner has filed this writ petition. 2. In response to the submissions made by the petitioner's counsel, the learned Standing Counsel has informed the Court that the petitioner never filed any application for delay condonation. According to him, even at the time of his making the submissions, the petitioner's counsel never requested the appellate authority to condone the delay. Only under those compelling circumstances has the appellate authority been constrained, further submits the learned Standing Counsel, to dismiss the statutory appeal. 3. In reply, the petitioner's counsel does insist that the petitioner filed a delay condonation petition. But he eventually agreed that the alleged delay condonation petition had no departmental seal to establish that it had in fact been filed. 4. I cannot find fault with the approach the appellate authority has adopted. In the absence of any delay condonation WP(C).No. 1341 of 2019 3 petition, he cannot but dismiss the statutory appeal. Indeed there are decided cases that filing a delay condonation petition is a technicality; if the pleadings have reference to the delay, the authority or the judicial forum can consider that issue. Even for that, the petitioner must advance that argument, atleast, at the stage when the issue was sought to be decided on merits. Here, admittedly, even that was lacking. 5. I must also observe that the petitioner, a Co-Operative Bank, may have been represented by its employee for briefing the counsel and having the appeal filed before the appellate authority. In turn, the counsel may have—I am not sure—overlooked the heed of filing a delay condonation petition. The delay is only 23 days, though. 6. Under these circumstances, to let the petitioner suffer on technicality and for, presumably, the counsel's oversight will not serve the interest of justice. I, therefore, without finding fault with the appellate authority's approach, set aside the Ext.P9 and remand the matter to the appellate authority. If the petitioner files a delay condonation petition in two weeks from now, the authority will WP(C).No. 1341 of 2019 4 consider that on merits. To be sure, I also observe that this judgment contains no reference to the merits of the delay condonation petition. And it is for the appellate authority to decide it, using its discretion. In the interest of justice, in the meanwhile, the authorities will defer coercive steps. This Writ Petition is disposed of as above. Sd/- DAMA SESHADRI NAIDU JUDGE sd WP(C).No. 1341 of 2019 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF ASSESSMENT ORDER FOR THE YEAR 2014- 2015 DATED 22.12.2017 EXHIBIT P2 A TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 156 OF THE INCOME TAX ACT DATED 22/12/2017. EXHIBIT P3 A TRUE COPY OF NOTICE ISSUED UNDER SECTION 271 (1) (C) DATED 22/12/2017 EXHIBIT P4 A TRUE COPY OF THE ONLINE APPEAL PREFERRED BY THE PETITIONER AGAINST EXHIBIT -P1 ASSESSMENT ORDER DATED 22.02.2018. EXHIBIT P5 A TRUE COPY OF APPEAL MEMORANDUM CONTAINING GROUNDS OF APPEAL FILED BY THE PETITIONER ALONG WITH COVERING LETTER DATED 10.2.2018. EXHIBIT P6 A TRUE COPY OF THE STAY APPLICATION FILED BY THE PETITIONER ALONG WITH EXT P5 APPEAL DATED 10.2.2018 EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION DATED 27.11.2018 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT EXHIBIT P8 A TRUE COPY OF THE SUBMISSION DATED 1.12.2018 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P9 A TRUE COPY OF THE ORDER IN ITA NO. 478/EF/TVM/CIT (A)/TVM/2017-18 DATED 10.12.2018. EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION F.NO. AAAV 0521A/W-2 (1)/TVM/2018-19 ISSUED BY THE 1ST RESPONDENT DATED 19.12.2018 EXHIBIT P11 A TRUE COPY OF APPLICATION DATED 21.12.2018, FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, WITH ACKNOWLEDGEMENT. EXHIBIT P12 A TRUE COPY OF THE ORDER IN ITA NO. 172/EF/TVM/CIT (A)/TVM/2017-18 DATED 10.12.2018 sd "