Kerala High Court
The Elavally Service ... vs The Commissioner Of Income Tax ... on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
WP(C) NO. 26935 OF 2021
PETITIONER:
THE ELAVALLY SERVICE CO-OPERATIVE BANK LTD NO.F.1456,
P.O.VAKA, THRISSUR-680 602, REPRESENTED BY ITS SECRETARY.
BY ADV P.C.SASIDHARAN
RESPONDENTS:
1 THE COMMISSIONER OF INCOME TAX (APPEALS)
NATIONAL FACELESS APPEAL CENTRE,
ROOM NO.356, C.R.BUILDING, IP ESTATE, DELHI-110 002.
2 THE PRINCIPAL COMMISSIONER OF INCOME TAX,
O/O.THE PRINCIPAL COMMISSIONER OF INCOME TAX,
AYAKAR BHAVAN, MANANCHIRA, KOZHIKODE, KERALA-673 001.
3 THE INCOME TAX OFFICER,
WARD 1 & TPS, CITY PLAZA, INCOME TAX OFFICE,
WEST NADA, GURUVAYOOR, KERALA-680 101.
ADV.JOSE JOSEPH, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 26935 OF 2021
2
BECHU KURIAN THOMAS, J
==========================
W.P.(C) No.26935 of 2021
---------------------------------------
Dated this the 30 th day of November, 2021
JUDGMENT
The grievance of the petitioner is mainly against Ext.P6
order issued by the Assessing Officer for grant of a stay
wherein petitioner was directed to deposit 20% of the
total outstanding demand of Rs.1,50,000/- imposed as
penalty.
2. Petitioner complains that, pursuant to Ext.P6, petitioner
attempted to move the Appellate Authority before whom
the appeal against the penalty order under Section 271B
of the Income Tax Act, 1961 was pending consideration.
Unfortunately, petitioner's stay petition was not accepted
due to the absence of an electronic link permitting filing
of such a stay petition, separately from the memorandum
of appeal.
3. The learned counsel for the petitioner,
Adv.P.C.Sasidharan, submits that the stay petition could
WP(C) NO. 26935 OF 2021
not be uploaded before the National Faceless Appeal
Centre where the appeal was pending consideration, since
petitioner had not filed the stay petition along with the
memorandum of appeal. Thereafter, petitioner filed Ext.P7
stay petition before the Principal Commissioner of Income
Tax, who is the jurisdictional Commissioner, under whom
the normal appeals ought to have been filed and
considered. Petitioner contends that the absence of a link
to upload the stay petition cannot be a reason to refuse
consideration of the same when it is filed by an assessee.
If such hurdles are created, the assessees access to justice,
will be affected and will amount to a blot on principles
of Rule of law.
4. I have heard the learned counsel for the petitioner as
well as Adv. Jose Joseph, the learned Standing Counsel
for respondents.
5. The learned Standing Counsel submitted that once the
petitioner invoked the jurisdiction of the assessing officer
and obtained a conditional order, he cannot thereafter
turn around and seek a stay before the appellate
WP(C) NO. 26935 OF 2021
authority. It was further submitted that the absence of a
link clearly indicates the intention that the stay petition
cannot be filed separate from the appeal and both should
have been filed together at the same time.
6. I have considered the rival contentions. It is essential
under the principles of law that a party must be able to
move applications for interim reliefs at any time when the
proceedings are pending. The said right cannot be denied
on the basis of any limitations created by technological
innovations. Uploading documents through electronic link
is an advancement in technology. Such an advancement in
technology cannot hamper the cause of justice. If the
absence of a link prevents a litigant from having access to
justice, it will be a situation where the procedure
becomes the mistress of justice and not the handmaid of
justice. I, therefore, find that the respondents must make
sufficient changes to its software to permit interim
applications to be filed or uploaded by the litigants,
during the pendency of proceedings to have opportunity
to access the adjudicatory mechanism.
WP(C) NO. 26935 OF 2021
7. Having regard to the circumstances that arose in this
case, I am of the opinion that petitioner is entitled to
have his application for stay considered by the appellate
authority.
8. Since the link to upload interim applications have not
been made available till now, it is necessary that the
application for interim stay filed before the jurisidictional
Commissioner be transmitted to the National Faceless
Appeal Centre and have the same considered in
accordance with law, in a time bound manner.
9. In view of the above deliberations, this Court directs
the jurisdictional Commissioner (Appeals) before whom
petitioner has filed the stay petition to transmit the
physical/soft copy of the stay petition to the National
Faceless Appeal Centre. Thereafter, the National Faceless
Appeal Centre shall issue the necessary notice to the
petitioner after granting a reasonable opportunity of
hearing and pass orders on the stay petition within an
outer period of three months from the date of receipt of a
copy of the stay petition.
WP(C) NO. 26935 OF 2021
10. Needless to mention, till such consideration takes place;
the coercive proceedings against the petitioner shall stand
stayed.
The writ petition is disposed of.
Sd/-
BECHU KURIAN THOMAS,
JUDGE
AMV/01/12//2021
WP(C) NO. 26935 OF 2021
APPENDIX OF WP(C) 26935/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT IN W.P(C)NO.8175/2020
DATED 17.03.2020.
Exhibit P2 TRUE COPY OF THE ORDER DATED 23.08.2021 ISSUED
BY THE 1ST RESPONDENT.
Exhibit P3 TRUE COPY OF THE APPEAL DATED 23.09.2021
SUBMITTED BEFORE THE IST RESPONDENT.
Exhibit P4 TRUE COPY OF THE ACKNOWLEDGEMENT OF RECEIPT OF
FORM SHOWING THE DATE OF FILING AS 23.09.2021.
Exhibit P5 TRUE COPY OF THE STAY PETITION DATED 25.09.2021
SUBMITTED BEFORE THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF THE ORDER ISSUED BY THE 3RD
RESPONDENT DATED 16.11.2021.
Exhibit P7 TRUE COPY OF THE STAY PETITION DATED 22.11.2021
SUBMITTED BEFORE THE 2ND RESPONDENT.
RESPONDENTS EXHIBITS NIL
TRUE COPY
