C Prasannakumaran Unnithan Vs ITAT (Kerala High Court)
Kerala High Court held that dismissal of stay petition on the ground of failure to comply with a non-existing condition precedent is perverse and requires interference. Accordingly, writ admitted and order set aside.
Facts- Vide the present petition, the petitioner challenges order passed by the Income Tax Appellate Tribunal, Cochin Bench vide which the stay petition filed by the petitioner in the said appeal was dismissed. Petitioner also challenges order of the 3rd respondent imposing penalty under Section 270A of the Income Tax Act, 1961 for the assessment year 2017-18.
Conclusion-Held that the direction of the learned single Judge to deposit 20% of the outstanding demand as a condition precedent for filing a stay petition was vacated by the Division Bench and therefore there was no such condition. On the other hand, the Tribunal was specifically directed to consider the stay petition in a time bound manner. To dismiss the stay petition on the ground of failure to comply with a non-existing condition precedent is perverse and requires interference. Accordingly, Ext.P8 is set aside.
Further, petitioner has also challenged an order under Section 270A of the Act imposing penalty. Since imposition of penalty is a separate cause of action and appellate remedy is available against such an order, petitioner ought to pursue the said remedy. Petitioner cannot bypass the statutory remedy of an appeal available against Ext.P13.
