IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 9962 of 2009(M) ------------------------------------- PETITIONER(S): ---------------------- K.S. NANDAKUMAR, PROPRIETOR, VYSALI TEXTILES, MUKKADA, KOLLAM. BY ADV. SRI.DALE P.KURIEN RESPONDENT(S): -------------------------- 1. INCOME TAX OFFICER, WARD - 2, KOLLAM. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), THIRUVANANTHAPURAM. BY STANDING COUNSEL SRI.JOSE JOSEPH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ W.P.(C) No. 9962 of 2009-M ---------------------------------------------- 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