Chandrasekaran Joseph Vijay Q) 00 (2 /2022 Villa 105, 3rd Avenue, Panaiyur, Chennai 600 019 PETITIONER vs. 1. The Deputy Commissioner of Income Tax Central Circle 2(2), Income Tax Department, 108, Nungambakkam High Road, Nungambakkam, Chennai — 600 034 2. The Additional Commissioner of Income Tax Central Range 2

IN OF
ORIGINAL JURISDIC’I’ION)

Chandrasekaran Joseph Vijay Q) 00 (2 /2022
Villa 105, 3rd Avenue,
Panaiyur, Chennai 600 019
PETITIONER vs.
1. The Deputy Commissioner of Income Tax Central Circle 2(2),
Income Tax Department,
108, Nungambakkam High Road,
Nungambakkam,
Chennai — 600 034
2. The Additional Commissioner of Income Tax Central Range 2
Income Tax Department,
108, Nungambakkam High Road,
Nungambakkam,
Chennai – 600 034
3. The Principal Commissioner of Income Tax, Central -2, Chennai,
Income Tax Department,
108, Nungambakkam High Road,
Nungambakkam, RESPONDENTS
Chennai – 600 034

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AFFIDAVIT OF CHANDRASEKARAN OSEPH VI AY
I, Chandrasekaran Joseph Vijay, son Of Mr. Chandrasekaran, Christian aged about 48 years residing at Villa 105, 3rd Avenue, Panaiyur, Chennai 600 019 do hereby solemnly affirm and state as follows:
1. I am the Writ Petitioner and I am conversant with the facts leading to the passing of the penalty order in terms of section 271AAB of the Income Tax Act, 1961 for the assessment year 2016-17 by the 1st Respondent on 30.06.2022 in-DIN: in
artificially creating demand in the demand notice issued u/s 156 of the said Act dated 30.06.2022 vide DIN & Notice No. ITBA/PNL/S/156/202223/1043699339(1), thereby competent to swear to this affidavit.
2. I state that the Writ Petitioner having PAN: AABPV3488N is filing this Writ Petition before this Hon ‘ble Court under Article 226 of Constitution of India with a prayer to quash the penalty order passed by the 1st Respondent under the Income Tax Act, 1961 on 30.06.2022 for the assessment year 2016-17 on the ground of such order being passed beyond the period of limitation prescribed u/s 275(1)(c) of the Act.
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3. Accordingly, I state and plead before this Hon’ble Court for issuing an appropriate Writ or Direction or Order especially in the nature of the WRIT
OF CERTIORARI for quashing the impugned penalty order passed by the 1st
Respondent and pass such other/further order or orders as this Hon’ble Court may deem fit and proper on the facts and in the circumstances of the case.
4. I state that the Writ Petitioner filed his return of income for the assessment year under consideration on 29.07.2016 electronically in reporting the taxable total income at Rs.35,42,91,890/- vide acknowledgement number 341341381290716 within the statutorily prescribed time limit and the assessment was completed under section 143 (3) of the Income Tax Act,1961 vide order dated 30.12.2017 in determining the taxable total income at

5. I further state that a search action was conducted in the hands of the Writ Petitioner on 30.09.2015 and in pursuance of the same the impugned penal proceedings are completed in terms of the provisions in section 271AAB of the Act after completing the search assessment in terms of section 143 (3) of the Act being the year of search vide order dated 30.12.2017.
6. I state that a notice under section 271(1)(c) of the Act read with section
274 of the Act was issued along with the assessment order dated 30.12.2017.

7. I state that the order of assessinent under section 143 (3) of the Act was subjected to appeal in tel’llls Of section 246/1 of the Act before the
Conunissioner of Incorne Tax (Appeals) -18, Chennai who vide order dated
20.08.2018 in ITA No.38/17-18 partly allowed the appeal of the Writ Petitioner.
8. I further state that an appeal was preferred by the Income Tax Department against the order of the CIT(Appeals) -18, before Income Tax Appellate Tribunal, Chennai in ITA No.3367/CHNY/2018 who vide their order dated
22.12.2021 party allowed the appeal in estimating the rasigar mandram expenses for the purpose of computation of taxable total income.
9. I state that pursuant to the order passed by the Income Tax Appellate Tribunal, the initiated penalty proceedings under section 271(1)(c) of the Act was completed vide order dated 30.06.2022 in levying penalty for the sustained portion of estimated rasigar mandram expenses and the writ petitioner on being aggrieved by the said order has filed an appeal on
27.07.2022 to the First Appellate Authority in terms of section 246A of the
Act.

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10.1 state that pursuant to the search action conducted under section 132 of the Act, a notice under section 271 AAB of the Act read with section 274 was issued on the Writ Petitioner. on 11.12.2018 long after the completion of assessment for the AY 2016.17 and I further state that the objections to the said proposal was filed by the Writ Petitioner 22.01.2019 to the office of the 1st Respondent.
11. I state that a notice dated 05.04.2019 was issued to the Writ Petitioner on the ground of no response despite the filing of the objections on 22.01.2019 in the impugned penal proceedings and I further state that a response to the above mentioned notice was filed on 05.04.2019 in the office of the 1st Respondent.
12. I state that in the meantime a show cause notice under section 263 of the Income Tax Act dated 30.07.2019 to revise the assessment order in so far as on presumption of non initiation of penalty proceedings under section 27 IAAB of the Act w.r.t the surrendered income of Rs 15 crores during the course of the search was issued on the Writ Petitioner by the 3 rd Respondent after a lapse of more than 6 months from the initiation of the penal proceedings under section 271AAB of the Income Tax Act, 1961.

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13. I state that a response/ol)jections to the same was filed on 14.082019 in the office of the 3rd Respondent and I further state that the order under section 263 of the Act was passed on in DIN & Letter No: ITBA.COM/F/17/2019-1’20/1019568487(1) in directing the 1st respondent to initiate the penal proceedings under section 271AAb of the Act by setting aside the assessment order dated 30.1202017 for that purpose \vhile overlooking the pendency of the initiated penalty proceedings under section 271 AAB of the Act as mentioned in this affidavit at para 10 .
14. I state that being aggrieved by the order of the revision, the Writ Petitioner filed an appeal before the Income Tax Appellate Tribunal, Chennai ‘C’ Bench in ITA No.3345/2019 who vide their order dated 13.05.2022 allowed the appeal of the Writ Petitioner in annulling the action of invoking the revisional powers under section 263 of the Act.
15. I state that a notice under section 274 read with section 271AAB(1) of the Act was issued on the Writ Petitioner on 24.06.2022 in DIN & Notice to continue the proceedings initiated through the show cause notice dated 11.12.2018.
16. I state that the response/objections to the show cause notice was field by the Writ Petitioner on 29.06.2022 in the office of the 1 st Respondent on the ground that the impugned penal proceedings were barred by limitation.
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17. I further state that replies/objections filed by the Writ Petitioner as Well respect to lililitation, the 1st as Respondent considering l) roceeded the objections to levy penalty raised underwith
section ‘271AAB of the Act vide impugned order dated 30.062022. I state that there was no meaningful consideration of the Writ Petitioner’s response/objections While levying penalty of
18. I state that 1st Respondent completely overlooked the tax history of the Writ Petitioner / Assessee hereby creating undue hardship and irreparable loss to the Writ Petitioner / Assessee by raising a wrong, unsustainable artificial demand, forcing the Writ Petitioner / Assessee to file this writ petition under Article 226 of the Constitution of India for appropriate interference by this Hon’ble Court.
19. I state that the Assessee / Writ Petitioner has not filed an appeal before the First Appellate Authority in view of the issues arising on the aspect of limitation for which the Writ Petitioner invokes the extra ordinary jurisdiction of this Hon’ble Court under Article 226 of the Constitution of India to challenge the wrong penalty order / impugned order with a pleading before this Hon’ble Court for passing appropriate INTERIM as well as FINAL order(s) in issuing the Writ as prayed for in quashing the said penalty order / impugned order for the assessment year 2016-17 by raising following grounds:
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GROUNDS
(a) The ordel’ of the 1st Respondent dated 30606.2022 passed u/s 271AAB of Income Tax Act, 1961 is contrary to law, facts and in the circumstances of the case.
(b) The 1st Respondent erred in passing the order imposing penalty u/s 271 AAB of the Act beyond the time limit prescribed in section 275(1)(c) of the Income Tax Act, 1961 and ought to have further appreciated that the impugned order under consideration was not sustainable in law on account of the same being barred by limitation.
(c) The 1st Respondent erred in not considering the objections in relation to the aspect of limitation raised by the Writ Petitioner thus vitiating the order of penalty passed u/s 271AAB of the Act.
(d) The 1st Respondent failed to appreciate in proper perspective the scope of the appeal before the Income Tax Appellate Tribunal while challenging the order of revision u/s 263 of the Act demonstrating perversity in passing the impugned order levying penalty.
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(e) The Respondent failed to appreciate that the vet-y challenge before the
Income Tax Appellate only on the validity of assumption of revisional jurisdiction When in fact the notice initiating penalty u/s 271 AAB of the Act was already isued to issuance of show cause notice u/s 263 of the Act.
(f) The 1st Respondent failed to appreciate the order of the Income Tax Appellate Tribunal dated 13.05.2022 in 1.1′.A.No,3345/2019 in proper perspective in as much as the Income Tax Appellate Tribunal had annulled the action of the 3rd Respondent in assurning revisional jurisdiction on the ground of apparent error committed in not noticing the issuance of notice u/s 274 read with section 271AAB of the Act which formed the basis of the entire revisional proceedings,
(g) The 1st Respondent failed to appreciate that the notice u/s 271 AAB of the Act was issued on 11.12.2018 and as per the provisions in section 275(1)(c) of the Act, the order of penalty ought to have been passed on or before 30.06.2019 in as much as of ought to have appreciated that the initiated penalty proceedings completed for the accepted addition/addition which was not disputed in appeal should be completed within six months from the end of the financial in which such action was initiated by such Authority/ 1st Respondent thereby vitiating the impugned order on the ground of such order being passed by the 15t Respondent after the limitation period prescribed under section 275(1)(c) of the Act.
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(h) The 1st IRespondent failed to appreciate that the time limit for imposition of penalty expired even before the issuance of show cause notice u/s 263 Of the Act thereby vitiating the passing Of the impugned order’
(i) The 1st Respondent failed to appreciate that in any event the action of assumption of jurisdiction u/s 263 of the Act was annulled by the Income Tax Appellate Tribunal on the ground that the very basis of the assumption was based on a erroneous fact.
(j) The 1st Respondent failed to appreciate that the non consideration of the objection of Writ Petitioner in relation to the aspect of limitation would tantamount to gross violation of principles of Natural Justice thereby vitiating the imposition of penalty u/s 271AAB of the Act.
(k) The 1st Respondent failed to appreciate the judgment of the Madras High
Court rendered in the case of R.P.Dharmalingam in tax case appeal No.420/2019 dated 31.07.2019 wherein this Hon’ble Court had held that the provisions of section 263 of the Act would not have invoked for extending the limitation provided under section 275 of the Act thereby vitiating the passing of the impugned penalty order.

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(l) ‘l’he 1st Respondent
0 tight appreciated before that the the Income action Taxof
challenging the of revisional jurisdiction
Appellate Tribunal did not to t changing of stand’ demonstrating perversity in passing the ilhpugned order.
(m) The 1st Respondent failed to appreciate that the distinction between the applicability of the provisions in section 275(1)(a) and section 275(1)(c) of the Act and further ought to have appreciated that the provisions in subsection (1), sub-clause (c) applies to the impugned proceedings thereby vitiating the passing of the impugned order•
(n) The 1st Respondent failed to appreciate that in any event the provisions in section 271AAB of the Act was not automatic inasmuch as the objections/replies filed by the Writ Petitioner in relation to the non applicability of the penal provisions were never considered while passing the impugned order mechanically.
(0) The 1st Respondent failed to appreciate that the basic assumption of jurisdiction by the 3rd Respondent u/s 263 of the Act without examining the records overlooking the factum of issuance of notice u/s 271AAB of the Act could not extend the limitation as provided u/s 275 of the Act.
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(P) The 1st Respondent (ailed to appreciate that the patent non application of Inind was glaring inasrnuch as the various replies and objections filed by the Writ Petitioner was lost sight of while mechanically passing the inlpugned order levying penalty u/s 27 IAAB of the Act,
(q) The 1st Respondent ought ot have appreciated that even the proceedings initiated u/s 27 IAAB of the Act vide show cause notice dated 11, 12.2018 for the AY 2016-17 was time barred and hence ought to have appreciated that the continuation of the time barred proceedings should be reckoned as nullity in law.
(r) The 1st Respondent failed to appreciate that having completed the assessment on 30.12.2017, the penalty proceedings u/s 271AAB of the Act for the surrendered income / undisputed income should be initiated and completed on or before 30.06.2018 and hence any show cause notice issued beyond 30.06.2018 should be considered as nullity in law.
20. It is further just and necessary that there should be an order of INTERIM INJUNCTION restraining the Respondents in recovering the demand quantified as part of the demand notice issued u/s 156 of the Act dated 30.06.2022 in DIN & Notice No. ITBA/PNL/S/156/202223/1043699339(1) for the assessment year 2016-17 pending disposal of this writ petition.
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’21. The Writ Petitioner / Assessee stlblllits that the cause o faction has arisen within the jurisdiction of this Ilon lave ble Court’
22. The writ Petitioner does not efficacious remedy except to invoke the Jurisdiction of this court under Article 226 of the Constitution of India.
23. The writ Petitioner has not filed any other writ to challenge the action of the 1st Respondent before this Hon’ble court or before any other Court.
24. The balance of convenience is in favour ofthe Writ Petitioner for issuance of ‘interim order’ as well as for issuance ofappropriate writ or order and the Writ Petitioner will be put to irreparable loss and prejudice if the Respondents are allowed to recover the demand quantified as a result of the penalty order passed for the assessment year 2016-17.
25. The Writ Petitioner prays that this Hon’ble Court may be pleased TO
DISPENSE with the production of the original impugned order dated 30.06.2022 passed in terms of 271AAB of the Income Tax Act, 1961 for the assessment year 2016-17 in DIN :
23/1043699359 (1) issued by the 1st Respondent in view of service of the said order electronically/digitally and pass such further or other orders as this Hon’ble Court may deem fit and proper in the circumstances of the case and thus render justice.

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26. For the reasons Inentioned above, it is prayed that this Hon’bJe Court be pleased to pass an order of STAY OF OPERATION of the impugned order issued u/s 271AAB of the Income ‘I’ax Act, 1961 dated 30806.2022 vide DIN and Order No during the pendency of the writ petition and pass such other order or direction as this Hon’ble Court deems fit and proper on the facts and circumstances of the case.
27. For the reasons mentioned above, it is thus prayed that this Hon’ble Court may be pleased to issue a writ of CERTIORARI or any other appropriate writ or order or direction to call for the records of the Writ Petitioner on the file of the First Respondent to quash the impugned order dated 30.06.2022 passed u/s 271AAB of the Act for the Assessment Year 2016-17 in and pass
such other/further order or orders as this Hon’ble Court may deem fit and proper on the facts and in the circumstances of the case and thus render

justice.
at Chennai and signed in my presence x
this the 27th day of July, 2022 Before Me
Solemnly and sincerely affirmed
Advoc
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