SHAJI AYYAPPAN, vs. THE INCOME TAX OFFICER,

PDF · subscribers
WP(C)/27623/2024HC KeralaKLHC01127843202405 August 2024Author: HONOURABLE MR. JUSTICE GOPINATH P.5 pages
AI SummaryPartly Allowed

What did the High Court hold?

The High Court disposed of the writ petition by directing the Income Tax Appellate Tribunal (ITAT), Kochi Bench, to consider and pass orders on the delay petition and the stay petition filed in the appeal. This consideration must be done after affording an opportunity of hearing to the petitioner, within three months from the date of receipt of a certified copy of the judgment. The Court further directed that any recovery proceedings for the assessed amount for the assessment year 2015-16 shall remain suspended until the ITAT passes its orders as directed. It was clarified that the ITAT needs to pass orders on the stay application on merits only if it decides to condone the delay. The ITAT was also permitted to consider the maintainability of the stay petition concerning the non-compliance with the pre-deposit requirement under Section 254(2A) of the Act.

What were the facts?

The petitioner, Shaji Ayyappan, is challenging an assessment order for the assessment year 2015-16. He filed an appeal against this order, which was dismissed. Subsequently, he filed a second appeal before the Income Tax Appellate Tribunal (ITAT), along with a stay petition and an application for condonation of delay. The petitioner apprehended recovery proceedings while these applications were pending before the ITAT. He approached the High Court seeking a direction to keep recovery proceedings in abeyance until his stay petition and delay condonation application were considered by the ITAT.

What were the issues?

1. Whether the High Court should direct the Income Tax Appellate Tribunal to consider and pass orders on the delay petition and stay petition filed by the petitioner, and if so, within what timeframe? 2. Whether recovery proceedings for the assessed amount should be suspended pending the ITAT's decision on the delay and stay petitions? Assessee's Contention: The petitioner argued that pending consideration of the stay petition and the application for condonation of delay, recovery proceedings should be kept in abeyance. Revenue's Contention: The learned Senior Standing Counsel for the Department was heard. No specific arguments are recorded in the judgment.

Which sections of the Income-tax Act were involved?

Section 254(2A)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 5TH DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 WP(C) NO. 27623 OF 2024 PETITIONER/S: SHAJI AYYAPPAN,AGED 52 YEARS VILLA NO.2, MISTIC BELLS, NEAR KANIYAMPUZHA BRIDGE, EROOR P.O.,ERNAKULAM, PIN - 682306 BY ADVS. K.KRISHNA ACHYUTH MENON RESPONDENT/S: 1 THE INCOME TAX OFFICER, INCOME TAX DEPARTMENT, CORPORATE WARD-2 (2), I.S. PRESS ROAD, ERNAKULAM, KOCHI, PIN - 682018 2 NATIONAL FACELESS APPEAL CENTRE, DELHI, REPRESENTED BY THE COMMISSIONER OF INCOME TAX (APPEALS), PIN - 110001 3 INCOME TAX APPELLATE TRIBUNAL, 1ST FLOOR, BLOCK C-I & C-II, KENDRIYA BHAVAN, KAKKANAD, KOCHI, REPRESENTED BY ITS SECRETARY, PIN - 682037 SRI. JOSE JOSEPH, SC, IT DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27623 OF 2024 2

JUDGMENT Petitioner suffered an order of assessment for the assessment year 2015-16 under the provisions of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). The petitioner filed an appeal against Ext.P1 order of assessment, which was dismissed by Ext.P2 order. The petitioner is now before the Income Tax Appellate Tribunal by filing a Second Appeal, which is stated to be pending consideration of the Income Tax Appellate Tribunal along with a stay petition (Ext.P5) and an application for condonation of delay (Ext.P4). The petitioner apprehends that recovery proceedings may be initiated to recover the amounts assessed as due, pending consideration of the matter by the Income Tax Appellate Tribunal.

2.

Learned counsel appearing for the petitioner submits that, pending consideration of the stay petition and the application for condonation of delay, the recovery proceedings may be kept in abeyance.

WP(C) NO. 27623 OF 2024 3

3.

Heard the learned Senior Standing Counsel appearing for the Department also.

4.

Having heard the learned counsel appearing for the petitioner and the learned Senior Standing Counsel appearing for the Income Tax Department and considering the limited nature of relief now sought for by the petitioner, this writ petition will stand disposed of, directing the Income Tax Appellate Tribunal, Kochi Bench (the 3rd respondent herein) to consider and pass orders on the delay petition and also on the stay petition filed in Ext.P3 appeal, after affording an opportunity of hearing to the petitioner, within a period of three months from the date of receipt of a certified copy of this judgment. Till such time as orders are passed as directed above, any proceeding for recovery of any amount assessed as due from the petitioner for the assessment year 2015-16 shall remain suspended. It is made clear that the Tribunal needs to pass orders on the application for stay on merits only if it decides to condone the delay in filing the appeal. It is also made clear that, it WP(C) NO. 27623 OF 2024 4 will be open to the Income Tax Appellate Tribunal to consider the issue of maintainability of the stay petition on account of the failure to make a pre-deposit as contemplated by the Proviso to Sub Section (2A) of Section 254 of the Act. GOPINATH P. JUDGE ajt

WP(C) NO. 27623 OF 2024 5

Appendix — schedule of exhibits
APPENDIX OF WP(C) 27623/2024 PETITIONER EXHIBITS Exhibit P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16 DTD. 22-12- 2017 Exhibit P2 COPY OF APPELLATE ORDER ISSUED BY THE 2ND RESPONDENT DTD. 11-08-2023 Exhibit P3 COPY OF APPEAL FIELD BY THE PETITIOENR BEFORE THE 3RD RESPONDENT DTD. 13-07-2024 Exhibit P4 COPY OF DELAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DTD. 18- 07-2024 Exhibit P5 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DTD. 18-07-2024 Exhibit P6 COPY OF JUDGMENT IN WPC NO. 18091/2022 OF THIS HON'BLE COURT DTD. 06-06-2022

Recent GST High Court judgments

Search GST case law →