IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9962 of 2009(M)
1. K.S. NMANDAKUMAR,
... Petitioner
Vs
1. INCOME TAX OFFICER,
... Respondent
2. THE COMMISSIONER OF INCOME TAX
For Petitioner :SRI.DALE P.KURIEN
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :07/04/2009
O R D E R
K.M.JOSEPH, J.
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W.P.(C) No. 9962 of 2009-M
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Dated, this the 7th day of April, 2009
J U D G M E N T
The prayers in the writ petition is to call for the
records of the case in Ext.P5 by way of issuing a writ of
certiorari and to direct the Commissioner of Income Tax
(Appeal), the 2nd respondent, to keep in abeyance all further
proceedings in Ext.P5 waiting for a final decision in Ext.P3
appeal. Petitioner is an assessee under the Income Tax Act,
1961 (“Act” for short). Ext.P1 is the assessment order dated
29.12.2006. Petitioner carried the matter in appeal. The
appeal is partly allowed. According to the petitioner, petitioner
carried the matter in further appeal before the Income Tax
Appellate Tribunal vide Ext.P3 appeal memo. It is stated that
in the course of appeal proceedings, penalty proceedings
under Sec.271 (1) ( C) for concealing income has been
initiated. Ext.P4 is the order imposing penalty on the
petitioner. Ext.P5 is the statutory appeal preferred before the
2nd respondent. It is stated that the appeal before the 2nd
respondent is pending. It is not yet numbered and listed.
WPC No. 9962/2009 -2-
The prosecution launched against the petitioner has been
stayed by this court by Ext.P6 judgment. It is stated that the
petitioner has filed an early posting petition for hearing the
assessment appeal before the Appellate Tribunal.
2. I heard the learned counsel for the petitioner
and learned standing counsel appearing on behalf of the
respondents. Learned counsel for the petitioner points out
that under Sec.271 (1) ( C) of the Act penalty can be imposed
only when the facts mentioned in clauses a to d are
established in the course of proceedings under the Act. I
notice that the notice for imposing penalty is on the same date
as the date on which the assessment order is passed. Learned
counsel for the respondent pointed out that they are
independent proceedings. I would think that it will be
conducive to the interest of justice that the penalty appeal
(Ext.P5) is disposed of after the disposal of the appeal filed
before the Income Tax Appellate Tribunal. The writ petition is
disposed of as follows:
There will be a direction to the 2nd respondent to
take up Ext.P5 appeal and dispose of the same only after a
WPC No. 9962/2009 -3-
decision is taken in Ext.P3 appeal by the Income Tax Appellate
Tribunal. It is open to the petitioner and also the respondents
to co-operate and see that Ext.P3 appeal is disposed of at the
earliest.
(K.M.JOSEPH)
JUDGE.
MS