Kerala High Court
Chandran Sarath vs Additional/Joint/Deputy/Assistant ... on 21 May, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
WA NO. 678 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.8758 OF 2024
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER
CHANDRAN SARATH,
AGED 40 YEARS
SINDHU SADANAM, THUVAYOOR NORTH, MANAKKALA,
ADOOR, PATHANAMTHITTA, KERALA, PIN - 691551
BY ADVS.
ADITYA UNNIKRISHNAN
ANIL D. NAIR (SR.)
TELMA RAJU
RESPONDENTS/RESPONDENTS
1 ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF
INCOME TAX/ INCOME TAX OFFICER,
NATIONAL FACELESS ASSESSMENT CENTRE,
DELHI, PIN - 110001
2 COMMISSIONER OF INCOME TAX (APPEALS),
NATIONAL FACELESS ASSESSMENT CENTRE (NFAC), NEW
DELHI, PIN - 110001
BY ADVS.
CHRISTOPHER ABRAHAM
P.R.AJITH KUMAR(K/000708/1998)
SC: ADV P R AJITH KUMAR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A No.678 of 2024
2
JUDGMENT
============
Dated this the 21st day of May, 2024
Dr. A.K.Jayasankaran Nambiar, J.
This writ appeal impugns the judgment dated 20.03.2024
of a learned Single Judge in W.P(C)No.8758 of 2024.
2. Briefly stated the facts necessary for disposal of this
writ appeal are as follows:
The appellant is an assessee under the provisions of the
Income Tax Act,1961 ('the Act' for short). He is engaged in the
business of buying and selling of cashew. The assessment for
the assessment years 2015-2016 was completed under Section
147 read with Section 144 and 144B of the Act on 22.03.2022.
The appellant was assessed to an escaped income of
Rs.2,08,64,696/- on which amount tax and penalty was
demanded. Aggrieved by the assessment order, the appellant
preferred an appeal before the Appellate Authority (2 nd
respondent). In the format of the appeal, against Serial No.9
which required the appellant to indicate whether he had paid
an amount equal to the amount of advance tax as per Section
249(4)(b) of the Act, as a pre-condition for maintaining the
appeal, as he had not filed any return for the assessment years
in question, the appellant had indicated 'not applicable'. This
led the First Appellate Authority to presume that the appellant
was not claiming any waiver of the pre-condition as envisaged
under the proviso to Section 249(4)(b). The appeal preferred
by the appellant was therefore rejected on the technical
ground that the appellant had not complied with the pre-
condition for maintaining the appeal before the First Appellate
Authority. It was the said order of the appellate authority that
was impugned in the writ petition aforementioned.
3. When the writ petition came up for hearing before
the learned Single Judge, the learned Single Judge found that
against the order of the First Appellate Authority, the
appellant had a remedy by way of filing a Second Appeal
before the Appellate Tribunal. The writ petition was therefore
dismissed without prejudice to the right of the appellant to
approach the Appellate Tribunal against the order of the First
Appellate authority.
4. We have heard Sri. Anil D Nair, learned Senior
Counsel assisted by Sri. Aditya Unnikrishnan for the appellant
and Sri.P.R. Ajithkumar, the learned Standing Counsel for the
respondents.
5. On a consideration of the rival submissions, we find
that this is a case where the Appellate Tribunal cannot really
consider the case of the appellant on merits in an appeal
preferred by the appellant against the order of the First
Appellate Authority. This is because the First Appellate
Authority dismissed the appeal preferred by the appellant
against the assessment order on a technical ground of non
compliance with a pre-condition for maintaining the appeal.
We take note of the submission of the learned Senior Counsel
for the appellant that the appellant had inadvertently omitted
to prefer a formal application in terms of the proviso to
Section 249(4)(b) and it was because of the said omission that
the First Appellate Authority did not consider his case for
waiver of the requirement of payment of an amount equal to
the amount of advance tax that was payable by him. He would
submit that if an opportunity is afforded to him at this stage,
he would prefer an application in terms of the proviso to
Section 249(4)(b) and the First Appellate Authority may be
directed to consider the same on merits. We find force in the
said submission of the learned Senior Counsel especially when
it is the case of the appellant that there was no income that
had accrued to him during the said assessment year that could
have been subjected to tax.
6. In the result, we set aside Ext.P3 order of the First
Appellate Authority (2nd respondent) and direct the 2nd
respondent to consider the application to be preferred by the
appellant in terms of the proviso to Section 249(4)(b), within a
month from the date of receipt of the same from the appellant
herein. On his part, the appellant shall take steps to file the
said application in terms of the proviso to Section 249(4)(b)
before the 2nd respondent within ten days from the date of
receipt of a copy of this judgment. To enable the appellant to
file the said application, the respondents shall ensure that the
portal of the Income Tax Department is kept open to receive
the said application within the aforesaid period of ten days
granted in this judgment. The 2nd respondent shall also ensure
that the appellant is afforded an opportunity of personal
hearing in the virtual mode before passing orders on the
waiver application preferred by the appellant.
The writ appeal is thus allowed as above.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
smm
