Gomathy Jalaja Nair vs The Deputy Commissioner Of Income ...
2023 Latest Caselaw 224 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
                       WP(C) NO. 40276 OF 2022
PETITIONER:

            GOMATHY JALAJA NAIR
            AGED 58 YEARS
            "MOHANAN" T C 55/294, KAIMANAM,
            THIRUVANANDAPURAM, PIN - 695040
            BY ADVS.
            V.P.NARAYANAN
            ALAN PRIYADARSHI DEV

RESPONDENTS:

    1       THE DEPUTY COMMISSIONER OF INCOME TAX
            CENTRAL CIRCLE 2, AYAKAR BHAVAN, ANNEXE KOWDIAR,
            THIRUVANANDAPURAM, PIN - 695003
    2       THE COMMISSIONER OF INCOME TAX (APPEALS)
            NATIONASL FACELESS APPEAL CENTRE, INCOME TAX
            DEPARTMENT, MINISTRY I OF FINANCE, JAWAHARLAL STADIUM,
            DELHI, PIN - 110003



            ADV. JOSE JOSEPH -STANDING COUNSEL



        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C)No.40276 of 2022
                                          2


                                  JUDGMENT

Dated this the 6th day of October, 2022

Petitioner suffered Exts.P2 to P4 orders of assessment,

for assessment years 2004-2005, 2005-2006 and 2007-2008

under the provisions of the Income Tax Act, 1961. The

petitioner has filed appeals before the First Appellate

Authority along with applications for stay and condonation of

delay. These appeals and applications for stay and

condonation of delay are produced along with the writ

petition.

2. The learned senior counsel appearing for the

petitioner on the instructions of Adv.V.P.Narayanan would

submit that, the petitioner has now been issued with Ext.P14

demand, pending consideration of the matter by the First

Appellate Authority. It is submitted that the imposition of

penalty is also proposed.

3. Sri.Jose Joseph, the learned counsel appearing for

the respondents Department would submit that since the

assessment orders (Exts.P2 to P4) were issued following

remand by the Tribunal through Ext.P1 order and considering W.P(C)No.40276 of 2022

that the assessment was completed following a search, the

appeals filed by the petitioner will have to be heard by the

Jurisdictional Appellate Authority and not by the National

Faceless Appeal Centre. It is submitted that, the Jurisdictional

Appellate Authority may be directed to consider and pass

orders on the applications for stay and the application for

condonation of delay in the appeals filed against Exts.P2 to P4

assessment orders within a time frame.

4. Having heard the learned senior counsel appearing

for the petitioner, and the learned counsel appearing for the

respondent Department, this writ petition will stand disposed

of directing that, if the petitioner files copies of the appeal

already filed by the petitioner along with copies of the

application for condonation of delay and application for stay

before the Jurisdictional Appellate Authority [The

Commissioner of Income Tax (Appeals), Panampilly Nagar,

Ernakulam] within a period of two weeks from today, the said

Authority shall consider those appeals as appeals filed before

it on the day the appeals were filed before the National

Faceless Appeals Centre and shall consider the application for

condonation of delay and the application of stay after

affording to the petitioner an opportunity of being heard. Till W.P(C)No.40276 of 2022

such time the orders are passed on the applications of

condonation of delay and stay, any demand pursuant to

Exts.P2 to P4 orders of assessment shall be kept in abeyance.

Steps for imposition of penalty shall also be kept in abeyance

till a decision is taken on the stay petitions.

5. It is directed that the petitioner does not present

the appeals filed as directed above before the Jurisdictional

Appellate Authority within a period of two weeks from today,

the petitioner will lose the benefit of this judgment. It is also

made clear that, the Jurisdictional Appellate Authority needs

to consider the appeals and the applications for stay on

merits, only if it is decides to condone the delay in filing the

appeals.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE AP W.P(C)No.40276 of 2022

APPENDIX OF WP(C) 40276/2022

PETITIONER'S EXHIBITS :

EXHIBIT-P1 TRUE COPY OF COMMON ORDER IN ITA NOS 42,43 & 44/C/2019 DATED 22.5.2019 BY ITAT KOCHI BENCH EXHIBIT-P2 TRUE COPY OF ASSESSMENT ORDER DATED 30-9-

2021 FOR AY 2004-05 EXHIBIT-P3 TRUE COPY OF ASSESSMENT ORDER FOR AY 2005-06 DATED 30-9-2021 EXHIBIT-P4 TRUE COPY OF ASSESSMENT ORDER DATED 30-9-

2021 FOR AY 2007-08 EXHIBIT-P5 TRUE COPY OF APPEAL MEMO FILED FOR AY 2004-

05 DATED 26.11.2021 EXHIBIT-P6 TRUE COPY OF STAY APPLICATION DATED 25.10.2021 EXHIBIT-P7 TRUE COPY OF DELAY CONDONATION PETITION DATED 12.11.2021 FOR AY 2004-05 EXHIBIT-P8 TRUE COPY OF MEMO OF APPEAL DATED 27.11.2021 FOR AY 2005-06 EXHIBIT-P9 TRUE COPY OF STAY PETITION FOR AY 2005-06 DATED 25.10.2021 EXHIBIT-P10 TRUE COPY OF DELAY CONDONATION PETITION DATED 12.11.2021 FOR AY 2005-06 EXHIBIT-P11 TRUE COPY OF APPEAL MEMO FOR AY 2007-08 DATED 27.11.2021 EXHIBIT-P12 TRUE COPY OF STAY PETITION FOR AY 2007-08 DATED 25.10.2021 EXHIBIT-P13 TRUE COPY OF DELAY CONDONATION PETITION DATED 12.11.2021 FOR AY 2007-08 EXHIBIT-P14 TRUE COPY OF THE NOTICE DATED 2.12.2022 ISSUED BY THE FIRST RESPONDENT