DIANA GOMEZ, vs. COMMISSIONER OF INCOME TAX (APPEALS),

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WP(C)/42292/2023HC KeralaKLHC01094598202305 January 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) to consider and pass necessary orders on the petitioner's application for condoning the delay and the stay application expeditiously, preferably within two months. The demand arising from the assessment order (Exhibit P1) was ordered to remain stayed until a decision was made on the condonation of delay and stay petitions. This stay was made conditional upon the petitioner depositing 15% of the total demand within one week from the date of the order. The High Court disposed of the writ petition with these directions. The court did not decide on the merits of the assessment order or the appeal itself, focusing instead on facilitating the expeditious disposal of the pending applications before the appellate authority.

What were the facts?

The petitioner, Diana Gomez, 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 notice was based on an assessment order (Exhibit P1) dated March 10, 2022, passed under Section 147 read with Sections 144 and 144B of the Income Tax Act. The petitioner had filed an appeal against the assessment order before the Commissioner of Income Tax (Appeals) (1st respondent), along with a stay application and an application for condonation of delay. The appeal was filed with a delay of 152 days. The petitioner sought to quash the demand notice and prevent coercive recovery steps until the disposal of her appeal and stay petition.

What were the issues?

1. Whether the High Court should entertain a writ petition seeking to quash a demand notice and stay recovery proceedings when an appeal with a stay application and condonation of delay application is pending before the appellate authority. Assessee's Contention: The petitioner sought interim relief from the High Court to prevent coercive recovery actions while her appeal and stay application were pending before the Commissioner of Income Tax (Appeals). The petitioner relied on the pendency of Ext.P2 appeal and Ext.P2(a) stay petition before the 1st respondent. Revenue's Contention: The learned Senior Standing Counsel for the Income Tax Department submitted that the delay in filing the appeal before the appellate authority was huge, specifically noting a delay of 152 days.

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 FRIDAY, THE 5TH DAY OF JANUARY 2024 / 15TH POUSHA, 1945 WP(C) NO. 42292 OF 2023 PETITIONER/S: DIANA GOMEZ, AGED 64 YEARS W/O PETER PEREIRA, AGED 64 YEARS, RESIDING AT JULIE LAND, MUDIYAKODE, CHERUNNIYOOR , VARKALA, THIRUVANANTHAPURAM, PIN - 695142 BY ADVS. S.GOKUL BABU KESHAVRAJ NAIR M.ANIL PRASAD GAADHA SURESH PARVATHY NAIR ARUN M.V. VISWANATH JAYAN RESPONDENT/S: 1 COMMISSIONER OF INCOME TAX (APPEALS), AAYKAR BHAWAN, 1 ST FLOOR, KAWDIAR P O, THIRUVANANTHAPURAM, KERALA, 695003. 2 ASSESSMENT OFFICER, OFFICE OF THE INCOME TAX OFFICER, WARD 1(1), AAYKAR BHAWAN, KOWDIAR P.O, THIRUVANANTHAPURAM, KERALA, 695003. BY ADV P.G.JAYASHANKAR OTHER PRESENT: P.G.JAYASHANKAR-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Dated this the 5th day of January, 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 10.03.2022 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 152 days.

4.

Considering the fact that the appeal has been filed along with the stay application and the application for condoning the delay of 152 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) 42292/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ASSESSMENT ORDER DATED 10.03.2022 FOR THE ASSESSMENT YEAR 2017-18 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 494701690150922 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/17/2022-23/1056866826(1) DATED 07.10.2023

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