Ramachandran vs The Deputy Commissioner Of Income ...
2022 Latest Caselaw 9616 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                       WP(C) NO. 21162 OF 2022
PETITIONER:

          RAMACHANDRAN,
          AGED 49 YEARS,
          54, T.C.37/150, PADMA NAGAR, EAST FORT,
          THIRUVANANTHAPURAM-695 023, REPRESENTED BY MR.
          RAMANCHANDRAN BALACHANDRAN, MANAGING PARTNER.

          BY ADVS.
          T.M.SREEDHARAN (SR.)
          V.P.NARAYANAN



RESPONDENTS:

    1     THE DEPUTY COMMISSIONER OF INCOME TAX,
          CENTRAL CIRCLE, THIRUVANANTHAPURAM-695 003.

    2     THE COMMISSIONER OF INCOME TAX (APPEALS),
          NATIONAL FACELESS APPEAL CENTRE, INCOME TAX DEPARTMENT
          MINISTRY OF FINANCE, JAWAHARLAL STADIUM,
          NEW DELHI - 110 001.




          BY SRI. JOSE JOSEPH (SC)




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 21162 OF 2022

                                2


                          JUDGMENT

The petitioner has approached this Court being aggrieved

by proceedings initiated for recovery of amount of penalty

assessed in terms of Ext.P4 order at a time when statutory

appeal is pending against the order imposing penalty. It is the

contention of the learned counsel for the petitioner that Ext.P4

is an ex parte order and the penalty was imposed without even

considering the contentions of the petitioner.

2. The learned Standing Counsel for the respondent

Department points out that a search was conducted in the

premises of the petitioner. It is submitted that following the

search, huge undisclosed income was detected and the

petitioner voluntarily filed the return of income accepting that

there was undisclosed income and discharged the liability for

tax in respect of the amount of undisclosed income. It is

submitted that penalty under Section 271AAB of the Income Tax

Act is almost automatic and no fault can be found with Ext.P4

order. The learned counsel for the petitioner in reply states that

the penalty under Section 271AAB of the Income Tax Act is not

automatic and considering the facts and circumstances of the

case, it is always open to the authorities to drop the WP(C) NO. 21162 OF 2022

proceedings for penalty.

3. Having regard to the facts and circumstances of the

case, considering the contentions raised by either side and also

considering the fact that an appeal against Ext.P4 order

imposing penalty is pending before the 2 nd respondent, this writ

petition is disposed of directing the 2 nd respondent to consider

and pass orders on the appeal filed by the petitioner against

Ext.P4 order. Any proceedings for recovery of amounts due

under Ext.P4 shall be kept in abeyance on condition that the

petitioner remits the sum equivalent to 10% of the amount of

penalty in four monthly instalments commencing from

16.09.2022. The first instalment shall be paid on or before

16.09.2022 and subsequent instalments shall be paid on or

before the 16th day of the succeeding months.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE

DK WP(C) NO. 21162 OF 2022

APPENDIX OF WP(C) 21162/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 29.9.2021 ISSUED BY THE 1ST RESPONDENT

Exhibit P2 TRUE COPY OF THE NOTICE DATED 23.3.2022 FOR INITIATING PENALTY PROCEEDINGS FOR THE ASSESSMENT YEAR 2019-20.

Exhibit P3 TRUE COPY OF THE REPLY DATED 23.3.2022 ALONG WITH ACKNOWLEDGMENT BY THE DEPARTMENT.

Exhibit P4 TRUE COPY OF THE PENALTY ORDER DATED 27.3.2022 ISSUED BY THE 1ST RESPONDENT.