DIANA PETER ALIAS DIANA GOMEZ vs. COMMISSIONER OF INCOME TAX (APPEALS)

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WP(C)/42345/2023HC KeralaKLHC01094710202311 April 2024Author: HONOURABLE MR. JUSTICE D. K. SINGH4 pages
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What did the High Court hold?

The High Court directed the Commissioner of Income Tax (Appeals) (1st respondent) to consider and pass necessary orders on the petitioner's application for condonation of delay and the stay application expeditiously, preferably within two months. The Court further ordered that the demand arising from the assessment order (Exhibit P1) shall remain stayed until a decision is made on the condonation of delay and stay petition. This stay is conditional upon the petitioner depositing 15% of the total demand as per the assessment order within one week from the date of the order. The writ petition was disposed of with these directions. The issue of quashing the demand notice was not decided on merits but was linked to the outcome of the pending applications before the appellate authority.

What were the facts?

The petitioner, Diana Peter, filed a writ petition before the High Court of Kerala challenging a demand notice (Exhibit P3) issued by the Assessment Officer (2nd respondent). The demand arose from an assessment order (Exhibit P1) dated March 14, 2022, passed under Section 147 read with Sections 144 and 144B of the Income Tax Act. The petitioner had filed an appeal against this assessment order before the Commissioner of Income Tax (Appeals) (1st respondent), along with a stay application and an application for condonation of delay. The revenue, represented by the Income Tax Department, pointed out that the appeal was filed with a significant delay of 150 days.

What were the issues?

1. Whether the High Court should quash the demand notice (Exhibit P3) issued by the Assessment Officer, and direct the Assessment Officer not to proceed with coercive recovery steps until the appeal and stay petition are disposed of by the Commissioner of Income Tax (Appeals)? The petitioner argued for the issuance of a writ of certiorari to quash the demand notice and a writ of mandamus to prevent coercive recovery. The petitioner sought these reliefs pending the disposal of their appeal and stay application before the first respondent. The revenue, through its Senior Standing Counsel, contended that there was a substantial delay of 150 days in filing the appeal before the Commissioner of Income Tax (Appeals). No specific arguments were recorded for the revenue regarding the merits of the assessment order or the demand notice itself, beyond the procedural delay.

Which sections of the Income-tax Act were involved?

Section 147,Section 144,Section 144B

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 WP(C) NO. 42345 OF 2023 PETITIONER: DIANA PETER ALIAS DIANA GOMEZ AGED 64 YEARS W/O PETER PEREIRA, AGED 64 YEARS RESIDING AT JULIE LAND, MUDIYAKODE, CHERUNNIYOOR VARKALA, THIRUVANANTHAPURAM ,695142, PIN - 695142 BY ADVS. S.GOKUL BABU KESHAVRAJ NAIR M.ANIL PRASAD PARVATHY NAIR GAADHA SURESH ARUN M.V. VISWANATH JAYAN RESPONDENTS: 1 COMMISSIONER OF INCOME TAX (APPEALS) AAYKAR BHAWAN, 1ST FLOOR, KAWDIAR PO THIRUVANANTHAPURAM, KERALA, 695003, PIN - 695003 2 ASSESSMENT OFFICER OFFICE OF THE INCOME TAX OFFICER WARD 1(1), AAYKAR BHAWAN, KOWDIAR, P.O THIRUVANANTHAPURAM, KERALA, 695003, PIN - 695003 BY ADV KEERTHIVAS GIRI SRI. P.G. JAYASHANKAR-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Dated this the 11th day of April, 2024 The present writ petition has been filed seeking the following reliefs: i) Issue a writ in the nature of Certiorari or such other writ, direction, or order, calling for records leading to Exhibit P3 demand notice issued by the 2nd respondent and quash the same. ii) Issue a writ of mandamus or such other writ, order, or direction, directing the 2nd respondent to not proceed with any coercive steps for recovery, till the disposal of Ext.p2 appeal or Ext.P2(a) stay petition pending before the 1st respondent. iii) grant such other and incidental reliefs as this Hon’ble Court may deem just and necessary on the facts and circumstances of this case. iv) Pass such other writs, order or direction as this Hon’ble Court may deem fit and proper in the factual circumstances of this case.

2.

The petitioner has filed an appeal along with stay application and application for condonation of delay against Ext.P1 assessment order dated 14.03.2022 passed under Section 147 read with Section 144 and 144B of the Income Tax Act.

3.

Sri.P.G Jayasankar, learned Senior Standing Counsel for the Income Tax Department submits that the delay is huge in filing the appeal. The petitioner has filed the appeal with delay of 150 days.

4.

Considering the fact that the appeal has been filed along with the stay application and the application for condoning the delay of 150 days, the 1st respondent is directed to consider and pass necessary orders on application for condoning the delay as well as stay application expeditiously, preferably with in a period of two months. The demand in pursuance to Ext.P1 order shall remain stayed till the decision on application for condonation of delay and stay petition subject to making deposit of 15% of the total demand as per Ext.P1 assessment order. The petitioner is directed to remit 15% of the total demand as per Ext.P1 assessment order within a period of one week from today. With the aforesaid directions, the present writ petition stands finally disposed of. DINESH KUMAR SINGH JUDGE AP

Appendix — schedule of exhibits
APPENDIX OF WP(C) 42345/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ASSESSMENT ORDER DATED 14.03.2022 FOR THE ASSESSMENT YEAR 2016-17 ISSUED BY THE INCOME TAX DEPARTMENT, NATIONAL FACELESS ASSESSMENT CENTRE DELHI, RESPONDENT ON THE PETITIONER Exhibit P2 A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT OF APPEAL BEARING E-FILING ACKNOWLEDGEMENT NUMBER 494450350150922 DATED 15.09.22 ISSUED BY THE INCOME TAX DEPARTMENT Exhibit P2(a) A TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT FOR THE STAY PETITION BEARING E-FILING ACKNOWLEDGEMENT NUMBER 186949031150823 DATED 12.08.2023 Exhibit P3 A TRUE COPY OF THE DEMAND NOTICE NO. ITBA/COM/F/17/2023-24/1056866826(1) DATED 07.10.2023

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