THYPARAMBIL SKARIA JAMES vs. THE INCOME TAX OFFICER

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WP(C)/27305/2016HC KeralaKLHC01074729201618 August 2016Author: HONOURABLE MR.JUSTICE A.M.SHAFFIQUE4 pages
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What did the High Court hold?

The High Court directed the Income Tax Appellate Tribunal (2nd respondent) to consider the petitioner's application for restoration (Ext.P11) and pass appropriate orders within two months of receiving a copy of the judgment. Furthermore, the Court ordered that recovery steps, if any, against the petitioner shall be kept in abeyance until the disposal of the restoration application. The Court's decision is based on the limited request made by the petitioner for consideration of his restoration application, without delving into the merits of the original appeal or the reasons for default.

What were the facts?

The petitioner, Thyparambil Skaria James, filed a writ petition before the High Court of Kerala seeking a direction to the Income Tax Appellate Tribunal (ITAT) to consider his application for restoration of an appeal. The petitioner's appeal before the ITAT was dismissed for default, purportedly due to non-receipt of hearing notice. The petitioner claims he did not receive the notice, leading to the dismissal order (Ext.P10). He filed an application for setting aside the dismissal order and restoring the appeal (Ext.P11). During the pendency of the first appeal, the petitioner had remitted 25% of the outstanding demand and filed a stay petition. The petitioner is facing coercive recovery steps and therefore approached the High Court.

What were the issues?

1. Whether the Income Tax Appellate Tribunal should consider the petitioner's application for restoration of his appeal, which was dismissed for default, given the petitioner's claim of non-receipt of hearing notice? Assessee's Contentions: The petitioner argues that the appeal was dismissed for default due to non-receipt of the hearing notice, a fact stated in his restoration application (Ext.P11). He also highlights that 25% of the demand was paid and a stay petition was filed during the first appeal. The petitioner seeks a direction for the ITAT to consider his restoration application. Revenue's Contentions: The judgment does not record any specific contentions from the revenue.

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938 WP(C).No. 27305 of 2016 (K) ---------------------------- PETITIONER: ----------- THYPARAMBIL SKARIA JAMES, PALLATHARA HOUSE, NELLIKAMON PO, RANNI, PATHANAMTHITTA. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT(S): -------------- 1.THE INCOME TAX OFFICER, WARD 2, OFFICE OF THE JOINT COMMISSIONER OF INCOME TAX, THIRUVALLA RANGE, ENNIKATTIL ESTATE, NEAR KSRTC BUS STATION, THIRUVALLA - 689 101. 2.THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, KENDRIYA BHAVAN, KAKKANADU, KOCHI. BY SRI.JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 27305 of 2016 (K) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS: ----------------------- P1 : TRUE COPY OF THE SALE DEED DATED 21.4.2010. P2 : TRUE COPY OF THE ORDER OF ASSESSMENT DATED 28.3.2014 PASSED BY THE 1ST RESPONDENT. P3 : TRUE COPY OF THE CONFIRMATION LETTER DATED 22.2.2014 ISSUED BY THE BROTHER OF THE PETITIONER. P4 : TRUE COPY OF THE CONFIRMATION LETTER DATED 22.2.2014 ISSUED BY THE SON OF THE PETITIONER. P5 : TRUE COPY OF THE JUDGMENT DATED 24.9.2014 IN WPC NO.22924 OF 2014. P6 : A TRUE COPY OF THE CHALLAN DATED 9.8.2014 SHOWING REMITTANCE OF RS.62,100/- P6(A) : A TRUE COPY OF THE CHALLAN DATED 22.9.2014 SHOWING REMITTANCE OF RS.62,100/- P6(B) : A TRUE COPY OF THE CHALLAN DATED 16.10.2014 SHOWING REMITTANCE OF RS.62,100/- P7 : A TRUE COPY OF THE ORDER OF THE COMMISSIONER OF INCOME TAX, (APPEALS) DATED 29.10.2015 DISMISSING THE APPEAL. P8 : A TRUE COPY OF THE FORM OF APPEAL AND GROUNDS OF APPEAL. P9 : A TRUE COPY OF THE STAY APPLICATION FILED BEFORE THE 2ND RESPONDENT. P10 : A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 1.3.2016 DISMISSING THE APPEAL FOR DEFAULT. P11 : A TRUE COPY OF THE PETITION FOR SETTING ASIDE EXT.P10 ORDER AND FOR RESTORING THE APPEAL DATED 7.4.2016 SUPPORTED BY THE AFFIDAVIT OF THE AUTHORISED REPRESENTATIVE. P12 : A TRUE COPY OF THE ORIGINAL POSTING NOTICE, POSTING THE CASE NO.27.5.2016. RESPONDENT(S)' EXHIBITS: NIL ----------------------- //TRUE COPY// P.S. TO JUDGE mbr/ A.M.SHAFFIQUE, J * * * * * * * * * * * * W.P.C.No.27305 of 2016 ---------------------------------------- Dated this the 18th day of August 2016

J U D G M E N T Petitioner has approached this Court seeking for a direction to the 2nd respondent, Income Tax Appellate Tribunal to consider Ext.P11 application for restoration. According to the petitioner,

the appeal came to be dismissed for non-appearance.

2.

Though it was stated in Ext.P10 order that notice of hearing was sent by registered post with acknowledgment due, according to the petitioner, he was not in receipt of the notice, which resulted in Ext.P10 order and all these facts have been stated in Ext.P11 application. It is also stated that during the pendency of the first appeal, petitioner had remitted 25% of the outstanding demand and a stay petition was also filed along with the appeal, which is pending before the Tribunal. In the meantime, the petitioner is faced with coercive steps and therefore the petitioner has approached this Court seeking the aforesaid direction. Having regard to the limited request made by the petitioner, it will only be appropriate to issue the following directions:

W.P.C.No.27305/2016 2 i) That the 2nd respondent shall consider Ext.P11 and pass appropriate orders within a period of two months from the date of receipt of a copy of this judgment. ii) Until disposal of Ext.P11 application, recovery steps, if any, shall be kept in abeyance.

(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr

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