MOHAMMED MUSTHAFA C.K vs. INCOME TAX OFFICER , WARD 2(3)

PDF · subscribers
WP(C)/40554/2023HC KeralaKLHC01090967202306 December 2023Author: HONOURABLE MR. JUSTICE D. K. SINGH5 pages
AI SummaryPartly Allowed

What did the High Court hold?

The High Court held that considering the long pendency of the appeal against the assessment order since 2018, it would be appropriate to dispose of the writ petition with a direction to the Third Respondent (Commissioner of Income Tax (Appeals), National Faceless Centre, New Delhi) to decide the appeal expeditiously, preferably within a period of two months, in accordance with the law. The Court did not explicitly address the prayer to keep recovery proceedings in abeyance, but the reasoning implies that the expeditious disposal of the appeal is the primary focus. The Court noted that the petitioner had not complied with the conditions for the stay order, meaning no stay was in operation, and the revenue was free to recover the demand. The ratio decidendi is that prolonged pendency of appeals warrants judicial intervention for expeditious disposal.

What were the facts?

The petitioner, Mohammed Musthafa C. K., filed a writ petition seeking a direction to the Third Respondent (Commissioner of Income Tax (Appeals), National Faceless Centre, New Delhi) to expeditiously dispose of his appeal (Ext. P-3) against an assessment order (Ext. P-2). He also sought a direction to the Fourth Respondent (Tax Recovery Officer) to keep in abeyance recovery proceedings (Ext. P-8) until the appeal is decided. Previously, in WP(C) No. 3252 of 2018, this Court had directed the Second Respondent (now Third Respondent) to decide the stay petition and stayed the tax demand until then. The stay petition was decided on 17.01.2019, requiring the petitioner to deposit 20% of the demand in two installments by January and February 2019, with the balance stayed for six months. The petitioner, however, failed to comply with the condition of depositing 20% of the demand.

What were the issues?

1. Whether the Court should issue a Writ of Mandamus directing the Third Respondent to dispose of the petitioner's appeal expeditiously, considering the long pendency since 2018? Assessee's Contention: The petitioner argues that his appeal has been pending since 2018, and therefore, it would be appropriate for the Court to direct the Third Respondent to decide it expeditiously. The petitioner also seeks to keep recovery proceedings in abeyance until the appeal is disposed of. Revenue's Contention: The judgment does not record any specific contentions from the revenue regarding the disposal of the appeal or the stay of recovery proceedings. However, it notes that the petitioner failed to comply with the conditions imposed by the Second Respondent while disposing of the stay petition, which means there is no stay operating in favour of the petitioner, and the authorities are free to recover the amount.

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 DINESH KUMAR SINGH WEDNESDAY, THE 6TH DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 WP(C) NO. 40554 OF 2023 PETITIONER: MOHAMMED MUSTHAFA C. K., AGED 50 YEARS, PARAKKOT PATTAYI HOUSE, FEROKE P. O.,KOZHIKODE, PIN – 673631. BY ADVS. SRI. P. RAGHUNATHAN SRI. PREMJIT NAGENDRAN SRI. RISHAL K. RESPONDENTS: 1 INCOME TAX OFFICER, WARD 2(3), AAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE, PIN – 673001. 2 COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN,MANANCHIRA, KOZHIKODE, PIN – 673001. 3 COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS CENTRE, NEW DELHI, PIN – 110001. 4 TAX RECOVERY OFFICER, AAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE, PIN – 673001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 40554 OF 2023 2 DINESH KUMAR SINGH, J. -------------------------- WP(C) No.40554 of 2023 ------------------------- Dated this the 6th day of December, 2023

JUDGMENT

1.

The present writ petition has been filed for the following reliefs; It is therefore prayed that this Hon’ble Court may be pleased call for the records leading to the issue of Ext. P-2 assessment order as well as Ext. P-3 appeal, peruse the same, hear arguments on behalf of the petitioner and: A: ISSUE a Writ of Mandamus or any other appropriate Writ or direction to the Third Respondent directing his to dispose of Ext. P-3 appeal expeditiously: B: ISSUE an appropriate writ or direction to the Fourth Respondent directing him to keep in abeyance all further proceedings pursuant to Ext. P-8 notice till such time Ext. P-3 appeal is disposed of by Third Respondent: C: Pass such other orders that the Petitioner may pray for and this Hon’ble Court may deem fit to grant.

2.

Earlier, the writ petitioner has approached this Court by filing W.P.(C) No. 3252 of 2018. The Co-ordinate Bench of this Court vide the Judgment and Order dated 19.03.2018 disposed of the said writ petition with direction to the 2nd respondent (3rd respondent herein) to pass orders on the stay petition claimed to have been filed by the WP(C) NO. 40554 OF 2023 3 petitioner. This Court also stayed the demand of tax covered by the assessment order till disposal of the stay application. Further direction was given that the petitioner’s bank accounts had been ceased, the petitioner should be permitted to operate the account until such time the stay application is disposed of.

3.

In pursuance to the direction issued by this Court, the 2nd respondent had decided the stay petition vide the order dated 17.01.2019 directing the petitioner to deposit 20% of the demand as per the assessment order in two equal installments to be paid by the last date of January 2019 and February 2019. The balance demand is stayed for a period of six months.

4.

It appears that the petitioner has not paid 20% of the aggregate demand in two equal installments as directed by the 2nd respondent while disposing of the stay application. The stay order was granted by the 2nd respondent on condition of payment of 20% of the demand in two installments. The petitioner has not complied with the condition of stay, there is no stay and the Authority are free to recover the amount as there is no interim order operating in favour of the petitioner.

5.

Be that as it may, according to the petitioner, the appeal filed by the petitioner against the assessment order has remained pending

WP(C) NO. 40554 OF 2023 4 since 2018. considering the long pendency of the appeal against the assessment order, it would be appropriate to dispose of this writ petition with direction to the 3rd respondent to decide the appeal expeditiously preferably within a period of two months in accordance with the law. DINESH KUMAR SINGH JUDGE Svn

WP(C) NO. 40554 OF 2023 5

Appendix — schedule of exhibits
APPENDIX OF WP(C) 40554/2023 PETITIONER’S EXHIBITS EXHIBIT P-1 PHOTOCOPY OF CERTIFICATE ISSUED BY VILLAGE OFFICER, RAMANATTUKARA EXHIBIT P-2 PHOTOCOPY OF ASSESSMENT ORDER FOR 2014.15 DT 11.08.2016 EXHIBIT P-3 PHOTOCOPY OF APPEAL FILED BEFORE SECOND RESPONDENT AGAINST EXT. P2 EXHIBIT P-4 PHOTOCOPY OF THE WPC ORDER IN WPC NO. 3252/2018 EXHIBIT P-5 PHOTOCOPY OF THE STAY PETITION ORDER DTD 17.01.2019 EXHIBIT P-6 PHOTOCOPY OF THE NOTICE FOR HEARING DTD 18.03.2021 EXHIBIT P-7 PHOTOCOPY OF THE RESPONSE TO EXT. P6 NOTICE DTD 18.03.2021 EXHIBIT P-8 PHOTOCOPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DTD 22.09.2023

Recent GST High Court judgments

Search GST case law →