Kerala High Court
Laly Chirakandathil George vs Union Of India on 13 September, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:70324
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
WP(C) NO. 32147 OF 2024
PETITIONER:
LALY CHIRAKANDATHIL GEORGE,
AGED 59 YEARS, W/O.SANY FRANCIS,
KATTRUKUDIYIL HOUSE, RMV ROAD, ELAMAKKARA, KOCHI,
PIN - 682 026.
BY ADVS.
NAVYA SEBY
ANJALY ELIAS
SHYNI WILLIAM
RESPONDENTS:
1 UNION OF INDIA,
THROUGH ITS SECRETARY (REVENUE) MINISTRY OF
FINANCE, DEPARTMENT OF REVENUE,
GOVERNMENT OF INDIA, NORTH BLOCK,
NEW DELHI G.P.O, PIN - 110 001.
2 INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH
1ST FLOOR, BLOCK, KENDRIYA BHAVAN, C-I & C-II,
KAKKANAD, KERALA, PIN - 682 037.
3 COMMISSIONER OF INCOME TAX (APPEALS),
NATIONAL FACELESS APPEAL CENTRE, MAYUR BHAWAN,
CONNAUGHT LANE, BARAKHAMBAM,NEW DELHI,
PIN - 110 001.
4 ASSISTANT COMMISSIONER OF INCOME TAX,
CIRCLE 1(2), KOCHI, 4TH FLOOR,
CENTRAL REVENUE BUILDING, I.S PRESS ROAD,
PIN - 682 018.
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WP(C) 32147/2024 2
5 PRINCIPAL COMMISSIONER OF INCOME TAX,
OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME
TAX, KOCHI-1, FIRST FLOOR, CENTRAL REVENUE
BUILDING, I.S PRESS ROAD, KOCHI, PIN - 682 018.
BY ADVS.
SRI. JOSE JOSEPH (Sr SC),
SRI. CYRIAC TOM (SC)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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WP(C) 32147/2024 3
JUDGMENT
The petitioner is an assessee under the provisions of
the Income Tax Act, 1961 (hereinafter referred to as the
'1961 Act'). The petitioner filed her return of income for
assessment year 2011-2012 declaring a total income to the
tune of Rs.10,42,400/-. The return was processed, and in
the intimation issued under Section 143(1) of the 1961 Act,
the total income was determined to be Rs.29,18,400/-, as a
result of which there was a tax demand of Rs.6,65,380/-.
The intimation is dated 02-09-2013. A statutory first
appeal was filed before the First Appellate Authority with a
delay of five (05) years and 157 days, and was dismissed on
the ground that no sufficient cause has been shown for
condonation of delay. The petitioner filed a second appeal
before the Income Tax Appellate Tribunal. The Income Tax
Appellate Tribunal by Ext.P4 order found no reason to
interfere with the order of the First Appellate Authority
and upheld the dismissal of the appeal by the First
Appellate Authority on the ground that no cause had been
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shown to condone the delay of five (05) years and 157 days
in filing the appeal before the First Appellate Authority.
2. The learned counsel appearing for the petitioner
would submit that since the petitioner is an individual
assessee, some indulgence may be shown to the petitioner
and the petitioner may be given an opportunity to contest
the assessment completed against her on merits after
condoning the delay in filing the appeal. It is submitted
that it is settled law that application for condonation of
delay should not be construed strictly and there should be
a liberal consideration of such application for condonation
of delay. The learned counsel places reliance on the
judgments of the Supreme Court in Esha Bhattacharjee
v. Managing Committee of Raghunathpur Nafar
Academy and Others; (2013) 12 SCC 649 and Mool
Chandra v Union of India & Aother (CIVIL APPEAL Nos.
8435 - 8436 OF 2024), in support of her contention.
3. The learned Standing Counsel appearing for the
Income Tax Department vehemently opposes the grant of
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any relief to the petitioner. It is submitted that though the
petitioner was an individual assessee, it appears that she
was the Director of various companies, as a result of which
the assessment of the petitioner was completed by the
Corporate Circle. It is submitted that there was absolutely
no ground taken in the application for condonation of delay
to condone the inordinate delay of five (05) years and
157 days in filing the appeal before the First Appellate
Authority. It is submitted that no fault can be found with
the order of the Income Tax Appellate Tribunal in
dismissing the second appeal filed by the petitioner. It is
also submitted that the remedy of the petitioner against
Ext.P4 is to file an income tax appeal and she cannot file a
writ petition under Article 226 of the Constitution of India.
4. Having heard the learned counsel appearing for
the petitioner and the learned Standing Counsel appearing
for the Income Tax Department, I am of the opinion that
the petitioner can be granted relief. The learned Standing
Counsel for the Income Tax Department may be right in
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contending that there has been inordinate delay in filing
the statutory first appeal. However, considering the law
laid down by the Supreme Court in Esha Bhattacharjee
(Supra) and Mool Chandra (Supra), I am of the view
that a liberal view can be taken and also considering the
circumstances of the case, the petitioner can be allowed to
contest the first appeal on merits after condoning the delay
in filing the first appeal. However, this can only be on
conditions. Since a demand of Rs.6,65,380/- together with
interest due thereon is pending against the petitioner from
the year 2013, it is directed that if the petitioner remits a
sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand
Only) within a period of two weeks from the date of receipt
of a certified copy of this judgment, Ext.P1 appeal filed by
the petitioner before the First Appellate Authority shall
stand restored to the file of the First Appellate Authority,
who shall pass fresh orders after affording an opportunity
of hearing to the petitioner. It is made clear that if the
amount of Rs.2,50,000/- is not remitted within the
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aforesaid period of two weeks, the orders of the First
Appellate Authority as confirmed by the Income Tax
Appellate Tribunal will stand confirmed. If the petitioner
deposits the amount within the time specified, Ext.P2 order
of the First Appellate Authority and Ext.P4 order of the
Income Tax Appellate Tribunal will stand quashed, to
enable the reconsideration of Ext.P1 appeal on merits. The
contention of the learned Standing Counsel appearing for
the Income Tax department that the only remedy against
Ext.P4 would be the filing of an Income Tax appeal does
not appear to be tenable, as an Income Tax appeal under
Section 260(A) of the 1961 Act will lie only on a substantial
question of law. The facts of this case reveal that no
substantial question of law arises from the order of the
Income Tax Appellate Tribunal.
Writ petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE
ats
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APPENDIX OF WP(C) 32147/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE APPEAL IN FORM 35 FILED BY
THE PETITIONER.
Exhibit P2 TRUE COPY OF THE ORDER ISSUED BY THE 3RD
RESPONDENT ON 23.12.2021.
Exhibit P3 TRUE COPY OF THE APPEAL FILED BY THE
PETITIONER IN FORM NO. 36 BEFORE THE 2ND
RESPONDENT ON 31.01.2022 ALONG WITH THE
WRITTEN SUBMISSION.
Exhibit P4 TRUE COPY OF THE ORDER ISSUED BY THE 2ND
RESPONDENT IN ITA73/COCH/2022 DATED
05.06.2024.
