IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 25^TH DAY OF JUNE 2024 / 4TH ASHADHA, 1946 WP(C) NO. 21866 OF 2024 PETITIONER:

THE MEENACHIL TALUK COOPERATIVE EMPLOYEES COOPERATIVE SOCIETY LIMITED, KURISUPALLY JUNCTION, PALA P.O.

KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY, SRI. BIJUKUMAR. G, PIN - 686575 BY ADVS.

G.MINI(1748)

A.KUMAR (SR.) P.J.ANILKUMAR P.S.SREE PRASAD BALASUBRAMANIAM R.

RESPONDENTS:

1 COMMISSIONER OF INCOME TAX (APPEALS)

INCOME TAX DEPARTMENT, NATIONAL FACELESS APPEAL CENTRE (NFAC), MINISTRY OF FINANCE, GOVT. OF INDIA, NEW DELHI, PIN - 110001

2 INCOME TAX OFFICER, INCOME TAX OFFICE, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, WARD 3, KOTTAYAM, PIN – 686001 R BY SR.JOSE JOSEPH SR.SC R BY SRI.CYRIAC TOM, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

'CR'

JUDGMENT

The petitioner, a Co-operative Society, is an assessee under the Income Tax Act, 1961 (hereinafter referred to as 'the Act', for short). The petitioner filed its return of income for the assessment year 2017-18 and claimed deduction under Section 80P of the Act. The 2^nd respondent, the Assessing Officer, completed the assessment and passed Ext. P1 order under Section 143(3) of the Act. The Assessing Officer disallowed the deduction claimed by the petitioner under Section 80P.

2. Against Ext. P1, the petitioner preferred Ext.

P2 appeal under Section 246A of the Act in Form No. 35 before the 1^st respondent, the Commissioner of Income Tax (Appeals). In Ext. P2, the petitioner has stated that there is delay of 12 days in filing the appeal and the ground for condonation of delay is shown as under;

“Delay of 12 days due to the non availability of our legal consultant who was out of station due to some personal reasons.”

3. The 1^st respondent, by Ext. P3 order, refused to condone the delay and dismissed the appeal in limine stating that the application does not explain the reasons, much less demonstrate sufficient cause for condoning the delay, whereas it is settled position of law that the assessee is duty bound to explain each day's delay after the last date of limitation. Referring to various decisions of the Income Tax Appellate Tribunals, the High Courts and the Hon'ble Supreme Court, the 1^st respondent has held as under:

“5.8 In view of the foregoing discussion, factual matrix and the judicial precedents, I find that no case has been made out by the assessee for existence of sufficient cause in the application for condonation of period of delay of 11 days in filing of appeal. I also find that it is also a settled position of law that the delay is un-excusable unless sufficient cause is shown. I further find that proper explanation and reasons for delay have not been given. Therefore, I am of the view that in the absence of existence of reasonable cause and also in the absence of proper explanation and reasons, without being supported by proper evidence, the appeal filed by the assessee late by 11 days, the delay is not condonable. Hence, the appeal of the assessee is not admitted and the same is dismissed in limine.”

4. Ext. P3 order is impugned in the writ petition contending, inter alia, that dismissing the statutory appeal in limine by refusing to condone the delay of 11 days is arbitrary and illegal and that the appellate authority went wrong in relying on judgments which are irrelevant and not applicable to the facts of the case. It is also contended that Ext. P3 has been passed in total disregard to the principles of natural justice.

5. Heard Smt. Mini. G, the learned counsel for the petitioner and Sri. Cyriac Tom, the learned Standing Counsel for the respondents.

6. Against an order passed by the assessing authority under Section 143(3), an appeal lies to the Commissioner (Appeals) under Section 246A of the Act. Section 249 (2) of the Act provides that where the appeal relates to any assessment or penalty, the appeal shall be