PUNATHIL NISHRIYA vs. INCOME TAX OFFICER

WP(C)/33743/2023HC KeralaKLHC01075496202313 October 2023Author: HONOURABLE MR. JUSTICE D. K. SINGH4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the writ petition by directing the appellate authority to consider the stay application (Ext.P3) on its merits. This consideration must take into account Exhibits P5 to P7, which are Office Memorandums issued by the Central Board of Direct Taxes, and the decision of the Apex Court in Principal Commissioner of Income Tax v. LG Electronics India Private Limited. The Court did not decide the merits of the stay application itself but mandated that it be considered properly. The operative direction is to the appellate authority to reconsider the stay application. No issue was expressly left undecided.

What were the facts?

The petitioner, Punathil Nishriya, filed a writ petition before the High Court of Kerala challenging an order dated 20.07.2023 (Ext.P4) and seeking a direction to the Income Tax Officer (1st respondent) to reconsider her stay application (Ext.P3). She also sought a writ of mandamus directing the Commissioner of Income Tax (Appeals) and the National Faceless Appeals Centre (2nd and 3rd respondents) to expeditiously consider and dispose of her statutory appeal (Ext.P2). The petition was filed after the petitioner had filed a statutory appeal and a stay application before the appellate authority. The High Court referred to a Supreme Court decision in Principal Commissioner of Income Tax v. LG Electronics India Private Limited.

What were the issues?

1. Whether the appellate authority should consider the stay application on its merits, taking into account relevant office memorandums and Supreme Court decisions? (Question of law and fact, concerning the powers of the appellate authority and principles of natural justice). Assessee's Contention: The petitioner sought a direction for the appellate authority to consider her stay application on its merits, implying that it had not been adequately considered or that she sought a specific outcome based on the merits. She also sought expeditious disposal of her statutory appeal. Revenue's Contention: The judgment does not record any specific contentions from the revenue. However, the court's direction implies that the revenue's position, if any, was not to prevent the appellate authority from considering the stay application on merits.

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 FRIDAY, THE 13TH DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 WP(C) NO. 33743 OF 2023 PETITIONER: PUNATHIL NISHRIYA AGED 45 YEARS D/O PUNATHIL MUHAMMED, HANAWHEELS, NEAR AYYAPPA TEMPLE, KALPETTA WAYANAD KERALA, PIN – 673 121. BY ADVS. G.KEERTHIVAS LAKSHMI DAS RESPONDENTS: 1 INCOME TAX OFFICER WARD NO.1, KALPETTA, PIN – 673 122. 2 COMMISSIONER OF INCOME TAX (APPEALS) AYAKAR BHAVAN, KOZHIKODE DISTRICT, PIN – 673 001. 3 NATIONAL FACELESS APPEALS CENTRE REPRESENTED BY PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (NFAC), C-BLOCK, SPM CIVIC CENTRE, NEW DELHI, PIN – 110 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 33743/2023 : 2 : DINESH KUMAR SINGH, J. --------------------------------------------------------- W.P.(C). No. 33743 of 2023 --------------------------------------------------------- Dated this the 13th day of October, 2023.

JUDGMENT

The present writ petition has been filed impugning Ext.P4 order dated 20.07.2023 and seeking a direction to the 1st respondent to reconsider Ext.P3 stay application. A writ of mandamus was also sought for to respondent Nos. 2 and 3 to consider and dispose of Exhibit P2 statutory appeal expeditiously within a time frame to be fixed by this Court.

In Principal Commissioner of Income Tax v. LG Electronics India Private Limited [Order dated 20.07.2018 in Civil Appeal No. 6850 of 2018], the Apex Court has held as follows:

“2. Having heard Shri.Vikramjit Banerjee, learned ASG appearing on behalf of the appellant, and giving credence to the fact that he has argued before us that the administrative circular will not operate as a fetter on the Commissioner since it is a quasi-judicial authority, we only need to clarify that in all cases like the present, it will be open to the authorities, on the facts of individual cases, to grant deposit orders of a lesser amount than 20%, pending appeal.”

In that view of the matter, this writ petition is disposed of with a direction to the appellate authority to consider Exhibit P3 stay application on its merit, keeping in view Exhibits P5 to P7 Office : 3 : Memorandums issued by Central Board of Direct Taxes as well as the decision of the Apex Court in M/s. LG Electronics India Private Limited (cited supra). Writ petition stands finally disposed of. DINESH KUMAR SINGH, JUDGE.

Rv : 4 :

Appendix — schedule of exhibits

APPENDIX OF WP(C) 33743/2023 PETITIONER’S EXHIBITS : Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER ALONG WITH DEMAND NOTICES DATED 31.3.2023 ISSUED BY THE 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE STATUTORY APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT CIT(A) DATED 26.4.2023 Exhibit P3 TRUE COPY OF THE STAY APPLICATION DATED 26.6.2023 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P4 TRUE COPY OF THE NOTICE DATED 20.7.2023 Exhibit P5 TRUE COPY OF THE OFFICE MEMORANDUM DATED 31.7.2017 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES Exhibit P6 TRUE COPY OF THE OFFICE MEMORANDUM DATED 29.2.2016 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES Exhibit P7 TRUE COPY OF THE INSTRUCTION NO.1914 RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge. rv

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