IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, 3RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941 WP(C).No.2856 OF 2020(F) PETITIONER: CHIRAYINKEEZHU SERVICE CO-OPERATIVE BANK LTD. NO.1155, REPRESENTED BY ITS SECRETARY, CHIRAYINKEEZHU P.O., THIRUVANANTHAPURAM DISTRICT-695 304. BY ADVS. SRI.T.R.HARIKUMAR, SRI.ARJUN RAGHAVAN RESPONDENTS: 1 INCOME TAX OFFICER, WARD-2 (5), OFFICE OF JOINT COMMISSIONER OF INCOME TAX, RANGE-2, 1ST FLOOR, AYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM DISTRICT-695 003. 2 COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695 003. SRI.CHRISTOPHER ABRAHAM, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, COURT ON SAME DAY DELIVERED FOLLOWING: ALEXANDER THOMAS, J. W.P.(C) No. 2856 of 2020 Dated this 3rd day of February, 2020 JUDGMENT case projected in this Writ Petition (Civil) are as follows: petitioner is primary agricultural credit society registered as per provisions of KCS Act. Ext.P-1 order was issued under Sec.271 B for assessment year 2015-16 against petitioner. Aggrieved by said order, petitioner filed appeal and stay petition before 2nd respondent. While awaiting orders on stay petition, it was informed vide Ext.P-2 communication that appeals are defective and defects have to be cured within 15 days. Ext.P-4 appeal was filed after curing defects, after 7 days of stipulated time. Later Ext.P-5 stay petition was also filed apprehending recovery proceedings. Ext.P6 is order issued by 2nd respondent dismissing appeal stating that defects are not cured. It is in light these averments and contentions that petitioner has filed instant Writ Petition (Civil) with following prayers: W.P.(C) No. 2856 of 2020 ..3.. i. To issue writ of certiorari calling for records leading to issuance of Exhibit P6 and quash same; ii. To issue writ of mandamus or any other writ, order or direction, directing 1st respondent not to proceed with recovery of demand based on Exhibit P1 penalty order for assessment year 2015-2016, till Exhibit P4 appeal as well as Exhibit P5 stay petition are disposed of by 2 nd respondent; And iii. To grant such other reliefs as this Honourable Court may deem fit in circumstances of this case. 2. Heard Sri.T.R.Harikumar, learned counsel appearing for petitioner and Sri.Christopher Abraham, learned Standing Counsel appearing for respondents. 3. It is pointed out by counsel appearing for petitioner that in similar circumstances, this Court has rendered directions as one covered by Ext.P-7 judgment 7.1.2020 in WP(C).No.34119/2019, etc. Paragraph Nos. 4 to 6 of Ext.P-7 judgment reads as follows: 4. learned counsel for petitioner would urge that it is now well settled by series of rulings of Apex Court and various High Courts in decisions as in State of Bihar v. Kameshwar Prasad Singh [2000 (9) SCC 94] that dismissing statutory appeals on technical grounds of limitation would not in any way advance interest of justice but admittedly, result in failure of justice etc. It is pointed out that impugned action of respondents in dismissing appeals in terms of impugned Exts.P11 and P12 proceedings is per se illegal and improper and that some breathing time should have been given to petitioner to clear all defects, so that their appeals and stay applications could have been considered and decided on merits etc. 5. Having heard both sides and after taking into account facts and circumstances of case, this Court is inclined to take view that impugned rejection orders Exts.P11 and P12 would warrant interdiction in these writ proceedings, so that appeals W.P.(C) No. 2856 of 2020 ..4.. and stay applications could be decided on merits, after affording reasonable opportunity of being heard to petitioner. Accordingly, it is ordered that appeals filed by petitioner as per Exts.P7 and P9 and stay applications as per Exts.P8 and P10 will stand remitted to 2nd respondent appellate authority for consideration and decision afresh and on merits. To effectuate such remit, it is ordered that impugned Exts.P11 and P12 rejection orders will stand set aside. Further learned counsel for petitioner would point out that petitioner has not raised some of relevant grounds in appellate memorandum and permission may be granted to ensure that additional memorandum of grounds is filed by petitioner in pursuance of appeals filed as per Exts.P7 and P9 and this Court may grant reasonable time in that regard. Having regard to facts and circumstances of case, this Court is of view that said limited plea need not be declined. 6. Accordingly, it is ordered that petitioner may file additional memorandum of grounds in support of their Exts.P7 and P9 appeals as well as Exts.P8 and P10 stay applications, which petitioner may appropriately file before 2nd respondent appellate authority without much delay preferably within period of ten days from date notified for receiving certified copy of this judgment. In case such additional memorandum of grounds is duly filed by petitioner as aforestated, then 2nd respondent appellate authority shall treat those additional grounds as part and continuation of appeals and stay applications as already filed. Thereafter, 2nd respondent may afford reasonable opportunity of being heard to petitioner on matters raised in Exts.P8 and P10 stay applications and orders may be passed on those stay applications without much delay preferably within period of six weeks from date of filing of aforestated additional memorandum of grounds. It is only for purpose of preservation of subject matter of lis, it is ordered that until orders are passed on Exts.P8 and P10 stay applications as aforedirected, further coercive steps for enforcing impugned order may be kept in abeyance. It is made clear that aforesaid directions have been issued by this Court only for purpose of preservation of subject matter of list and shall not be construed in any manner as opinion on part of this Court regarding merits of controversy which would fall exclusively within province of 2nd respondent appellate authority for decision independently and on merits. 4. Taking note of directions in said judgment, it is ordered that petitioner may file additional memorandum of grounds in support of Ext.P-4 appeal as well as Ext.P-5 stay W.P.(C) No. 2856 of 2020 ..5.. application before 2nd respondent appellate authority, without much delay preferably within period of 10 days from date notified for receiving certified copy of this judgment. In case such additional memorandum of grounds is duly filed by petitioner as aforestated, then 2nd respondent appellate authority shall treat those additional grounds as part and continuation of appeal and stay application already filed. Thereafter, 2 nd respondent after affording reasonable opportunity of being heard to petitioner on matters raised in Ext.P-5 stay application, may pass orders on stay application without much delay, preferably within period of 6 weeks from date of filing of aforestated additional memorandum of grounds. 5. It is only for purpose of preservation of subject matter of lis, it is ordered that until orders are passed on Ext.P-5 stay application as aforedirected, further coercive steps for enforcement of impugned order may be kept in abeyance. It is made clear that aforesaid directions have been issued by this Court only for purpose of preservation of subject matter of lis, and shall not be construed in any manner as opinion on part of this Court regarding merits of controversy which W.P.(C) No. 2856 of 2020 ..6.. would fall exclusively within province of 2 nd respondent appellate authority for decision independently and on merits. With these observations and directions, above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C) No. 2856 of 2020 ..7.. APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF ORDER DATED 28.6.2018 ISSUED BY IST RESPONDENT UNDER SECTION 271 B OF INCOME TAX ACT, IMPOSING PENALTY FOR ASSESSMENT YEAR 2015-2016. EXHIBIT P2 TRUE COPY OF COMMUNICATION DATED 8.11.2019, ISSUED BY 2ND RESPONDENT, FOR ASSESSMENT YEAR 2015-2016. EXHIBIT P3 TRUE COPY OF COVERING LETTER DATED 18.11.2019 BY WHICH APPEAL WAS RE-SUBMITTED. EXHIBIT P4 TRUE COPY OF ONLINE APPEAL ALONG WITH GROUNDS OF APPEAL DATED 20.11.2019, FILED BEFORE 2ND RESPONDENT FOR ASSESSMENT YEAR 2015-2016. EXHIBIT P5 TRUE COPY OF STAY PETITION DATED 30.11.2019, FILED IN EXT-P4 APPEAL. EXHIBIT P6 TRUE COPY OF ORDER DATED 29.11.2019 IN ITA NO.80/EF/TVM/CIT(A)/TVM/2018-19 OF 2ND RESPONDENT. EXHIBIT P7 TRUE COPY JUDGMENT DATED 7.1.2020 IN WPC NO.34119 OF 2019. Chirayinkeezhu Service Co-Operative Bank Ltd. v. Income-tax Officer, Ward-2(5), Thiruvananthapuram / Commissioner of Income-tax (Appeals), Thiruvananthapuram