SAFFERULLAH ELLYASU KUNJU vs. THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX ,
What did the High Court hold?
The High Court of Kerala held that the Ext.P6 order of penalty was liable to be set aside. The reasoning was that the order had been passed without taking into account the High Court's previous judgment in Ext.P2, which had already set aside the assessment order and the notice for penalty. The Court noted the concession made by the Standing Counsel for the Income Tax Department regarding this procedural lapse. Consequently, the Ext.P6 order was set aside. The Income Tax Department was granted the liberty to initiate penalty proceedings afresh in accordance with the law. No other issues were decided, and the writ petition was disposed of on this basis.
What were the facts?
The petitioner, Safferullah Ellyasu Kunju, approached the High Court of Kerala aggrieved by Ext.P6 order of penalty. Previously, this Court, by Ext.P2 order, had set aside an order of assessment (Ext.P1) and a notice for penalty imposition. The impugned Ext.P6 order of penalty was passed without acknowledging the High Court's Ext.P2 judgment. The Standing Counsel for the Income Tax Department fairly conceded that Ext.P6 order was liable to be set aside for this reason. The writ petition was filed challenging the penalty order.
What were the issues?
1. Whether the Ext.P6 order of penalty is liable to be set aside for having been passed without considering the High Court's prior judgment in Ext.P2, which had set aside the assessment order and penalty notice. Assessee's Contention: The petitioner argued that the penalty order (Ext.P6) was passed in violation of the High Court's earlier order (Ext.P2) and therefore, it should be quashed. Revenue's Contention: The Standing Counsel for the Income Tax Department conceded that the Ext.P6 order of penalty was issued without taking note of the High Court's judgment in Ext.P2 and therefore, it had to be set aside.
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Cause title — parties, addresses and appearances
JUDGMENT
Petitioner has approached this Court being aggrieved by Ext.P6 order of penalty.
It appears that this Court, through Ext.P2 order, had set aside Ext.P1 order of assessment as well as a notice issued for imposition of penalty for reasons indicated in that judgment. It is clear on a reading of the impugned Ext.P6 that it has been passed without taking note of Ext.P2 judgment of this Court.
Sri. Christopher Abraham, learned Standing Counsel appearing for the Income Tax Department very fairly concedes that Ext.P6 order has to be set aside on account of the fact that the same has been issued without taking note of Ext.P2 judgment.
Taking note of the submissions of the learned counsel appearing for the petitioner and the learned Standing counsel appearing for the Income Tax Department, Ext.P6 order is set aside, leaving it open to the Income Tax Department to initiate proceedings for imposition of penalty in accordance with law.
The writ petition is disposed of as above. GOPINATH P., JUDGE ajt
WP(C) NO. 17731 OF 2022 3
Appendix — schedule of exhibits
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