PULIYAMMAKKAL MATHAI SEBASTIAN vs. INCOME TAX OFFICER

WP(C)/32712/2023HC KeralaKLHC01072645202305 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 petitioner to file a fresh stay application before the appellate authority within one week. The appellate authority was directed to consider this application on its merits. The consideration should take into account Ext.P5 to Ext.P7 Office Memorandums issued by the Central Board of Direct Taxes and the Supreme Court's observation in Principal Commissioner of Income Tax Vs. LG Electronics India Private Limited (2018). The Supreme Court's observation in the cited case clarified that it is open to the authorities, on the facts of individual cases, to grant deposit orders of a lesser amount than 20%, pending appeal, even though an administrative circular may not operate as a fetter on a quasi-judicial authority. No specific issue was left undecided; the petition was disposed of with directions.

What were the facts?

The petitioner, Puliyammakkal Mathai Sebastian, filed a writ petition before the High Court of Kerala challenging an order dated 27.06.2023 (Ext.P4) and seeking a direction to the Income Tax Officer (1st respondent) to reconsider a stay application (Ext.P3). The petitioner's appeal against the assessment order was pending before the appellate authority (3rd/4th respondent). The petitioner was granted one week to file a stay application before the appellate authority.

What were the issues?

1. Whether the appellate authority should be directed to reconsider the stay application filed by the petitioner, considering the relevant Office Memorandums and Supreme Court judgments. Assessee's Contention: The petitioner sought a direction for the appellate authority to reconsider their stay application. The petitioner relied on Office Memorandums (Ext.P5 to Ext.P7) issued by the Central Board of Direct Taxes and the Supreme Court's judgment in Principal Commissioner of Income Tax Vs. LG Electronics India Private Limited (2018). Revenue's Contention: No specific contention is recorded for the revenue in the judgment.

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 THURSDAY, THE 5TH DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 WP(C) NO. 32712 OF 2023 PETITIONER: PULIYAMMAKKAL MATHAI SEBASTIAN AGED 66 YEARS PULIYAMMAKKAL HOUSE, CHEERAL P.O., SULTHAN BATHERY VIA, WAYANAD DISTRICT, PIN – 673 592. BY ADVS. G.KEERTHIVAS LAKSHMI DAS RESPONDENTS: 1 INCOME TAX OFFICER AYAKAR BHAVAN, KALPETTA, PIN – 673 122. 2 THE ASSESSMENT UNIT, INCOME TAX DEPARTMENT REPRESENTED BY INCOME TAX OFFICER , AYAKAR BHAVAN, KALPETTA, PIN – 673 122. 3 THE COMMISSIONER OF INCOME TAX (APPEALS) AYAKAR BHAVAN, KOZHIKODE DISTRICT, PIN – 673 001. 4 NATIONAL FACELESS APPEAL CENTRE C BLOCK, SPM CIVIC CENTRE, NEW DELHI - 110001, REPRESENTED BY PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (NFAC), PIN – 110 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 32712 OF 2023 2 DINESH KUMAR SINGH, J. -------------------------------------------- WP(C) No. 32712 of 2023 -------------------------------------------- Dated this the 5th day of October, 2023

J U D G M E N T

The present writ petition has been filed impugning Ext.P4 order dated 27.06.2023 and direct the 1st respondent to reconsider Ext.P3 stay application.

After some arguments, Learned Counsel for the petitioner submitted that an appeal against the assessment order is pending before the appellate authority, i.e., 3rd / 4th respondent. 3. wherein it has been observed as under; “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.”

With aforesaid, the present writ petition stands disposed of. DINESH KUMAR SINGH JUDGE rpr

WP(C) NO. 32712 OF 2023 4

Appendix — schedule of exhibits

APPENDIX OF WP(C) 32712/2023 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE DATED 8.9.2022 Exhibit P2 TRUE COPY OF THE APPEAL FILED BEFORE THE 3RD RESPONDENT HEREIN DATED 8.10.2022 Exhibit P3 TRUE COPY OF THE STAY APPLICATION DATED 27.6.2023 Exhibit P4 TRUE COPY OF THE ORDER DISMISSING THE STAY APPLICATION DATED 27.6.2023 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

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