Kozhikode Daya Hospitals Private ... vs The Income Tax Officer (Tds)
2022 Latest Caselaw 7549 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
                     THE HONOURABLE MR. JUSTICE GOPINATH P.
            FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
                              WP(C) NO. 26166 OF 2021
PETITIONER:

                  KOZHIKODE DAYA HOSPITALS PRIVATE LTD.,
                  V-302 AND 303, SHORNUR ROAD, NEAR VIYYUR BRIDGE,
                  THRISSUR-680 022, REPRESENTED BY ITS MANAGING DIRECTOR,
                  K.P. AHAMMED KOYA.

                  BY ADVS.
                  HARISANKAR V. MENON
                  MEERA V.MENON
                  R.SREEJITH
                  K.KRISHNA



RESPONDENTS:

       1          THE INCOME TAX OFFICER (TDS),
                  AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR-680
                  001.

       2          THE JOINT COMMISSIONER OF INCOME TAX (TDS),
                  TDS RANGE, C.R. BUILDINGS, I.S.PRESS ROAD, KOCHI 18.

                  BY ADV CHRISTOPHER ABRAHAM




THIS       WRIT    PETITION   (CIVIL)   HAVING    COME   UP   FOR   ADMISSION   ON
24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.26166/2021                   2

                                JUDGMENT

The petitioner has approached this Court being aggrieved by Ext.P6

order imposing penalty. Primarily, it is the contention of the petitioner,

that Ext.P6 was issued without considering the reply submitted by the

petitioner. It is also pointed out that Ext.P6 order should not have been

issued when the assessment order which gives rise to the order of penalty is

under appeal before the appellate authority.

2. The learned counsel for the Department points out that the

order imposing penalty was issued after giving opportunity to the

petitioner. It is submitted that, at any rate, the petitioner cannot challenge

Ext.P6 directly before this Court under Article 226 of the Constitution of

India.

3. Having heard the learned counsel for the petitioner and the

learned Standing Counsel appearing for the Income Tax Department, I am

of the view that there is merit in the contention taken by the learned counsel

appearing for the Income Tax Department that the petitioner has no cause

of action to challenge Ext.P6 order of penalty directly before this Court

under Article 226 of the Constitution of India as no jurisdictional issue is

pointed out. I am also not able to find in favour of the petitioner on any

issue relating to natural justice. Therefore, this writ petition will stand

disposed of permitting the petitioner to approach the appellate authority

with an appeal against Ext.P6 order of penalty. The period during which

this writ petition was pending before this Court namely from 22.11.2021 till

today (24.6.2022) shall be excluded for the purpose of computing the

period of limitation for filing the appeal, provided the appeal is filed along

with a stay petition within a period of ten days from the date of receipt of a

certified copy of this judgment. If the petitioner files an appeal along with

the stay petition as above, any coercive steps to enforce the demand arising

out of Ext.P6 order of penalty shall be kept in abeyance till a decision is

taken on the stay petition to be filed by the petitioner.

Sd/-

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 26166/2021

PETITIONER EXHIBITS

Exhibit P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16.

Exhibit P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

Exhibit P3 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT.

Exhibit P3(a) COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT.

Exhibit P4 COPY OF LETTER FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

Exhibit P5 COPY OF E-MAIL FILED BY THE PETITIONER'S CHARTERED ACCOUNTANT.

Exhibit P6 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.