MATHEW GEORGE, vs. COMMISSIONER OF INCOME TAX (APPEALS) - 3,

WP(C)/22177/2022HC KeralaKLHC01045789202222 August 2023Author: HONOURABLE MR.JUSTICE C.S.DIAS6 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court, in exercise of its extraordinary powers under Article 226 of the Constitution of India, directed the first respondent (Commissioner of Income Tax (Appeals) - 3) to consider and dispose of the stay petitions (Exts.P7 to P9) in accordance with law and as expeditiously as possible, within three months from the date of receipt of a certified copy of the judgment. The Court clarified that this direction should be untrammelled by any observation made in Ext.P10 letter. The Court further directed that if the first respondent proposes to pass any conditional interim order of stay, reasons must be stated for the same. Additionally, all further coercive proceedings against the petitioner were deferred until orders were passed on the stay petitions. The issue of the third respondent's jurisdiction to pass Ext.P10 was implicitly addressed by deferring coercive proceedings and directing the first respondent to decide the stay petitions independently.

What were the facts?

The petitioner, Mathew George, filed a writ petition seeking a direction to the Commissioner of Income Tax (Appeals) - 3 (first respondent) to consider and dispose of stay petitions (Exts.P7 to P9). These petitions were filed along with statutory appeals against orders passed by the Assistant Director of Income Tax (Inv.)-II (second respondent) under the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015. During the pendency of the stay petitions, the Principal Commissioner of Income Tax (Central), Kochi (third respondent) issued an order (Ext.P10) directing the petitioner to remit 20% of the demanded amount. The petitioner contended that the third respondent lacked jurisdiction to pass this order and that the first respondent should be directed to dispose of the pending stay petitions expeditiously.

What were the issues?

1. Whether the third respondent had the jurisdiction to pass Ext.P10 order directing the petitioner to remit 20% of the demanded amount while statutory appeals and stay petitions were pending before the first respondent? 2. Whether the first respondent should be directed to consider and dispose of the pending stay petitions (Exts.P7 to P9) expeditiously? Assessee's Contentions: The petitioner argued that the third respondent had no jurisdiction to pass Ext.P10 order. The petitioner also contended that since the statutory appeals and stay petitions were pending before the first respondent, the first respondent should be directed to consider and dispose of Exts.P7 to P9 immediately, notwithstanding Ext.P10 order. Revenue's Contentions: The judgment records no specific contentions from the revenue regarding the jurisdiction of the third respondent or the disposal of the stay petitions.

Which sections of the Income-tax Act were involved?

Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 22ND DAY OF AUGUST 2023 / 31ST SRAVANA, 1945 WP(C) NO. 22177 OF 2022 PETITIONER: MATHEW GEORGE, AGED 67 YEARS, S/O K. G. GEORGE, 3A, LINK HORIZON, MARINE DRIVE, ERNAKULAM, HIGH COURT P. O., ERNAKULAM-682031. BY ADV ROSHIN IPE JOSEPH RESPONDENTS: 1 COMMISSIONER OF INCOME TAX (APPEALS) - 3, POORNIMA BUILDINGS, NEAR MANORAMA JUNCTION, PANAMPILLY NAGAR, ERNAKULAM, KOCHI-682036. 2 ASSISTANT DIRECTOR OF INCOME TAX (INV.)-II, 4TH FLOOR, AARYA BHANGI PINNACLE, ERNAKULAM, S. A. ROAD, KOCHI-682020. 3 PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL), KOCHI, KANDAMKULATHI TOWERS, M. G. ROAD, ERNAKULAM P. O., KOCHI – 682 011. (Impleaded as additional third respondent vide order dated 9.8.2023 in IA.No.1/2022. 4 CENTRAL BOARD OF DIRECT TAXES, REPRESENTED BY ITS CHAIRMAN, NORTH BLOCK, SECRETARIAT BUILDING, NEW DELHI – 110 001. (Impleaded as additional fourth respondent vide order dated 9.8.2023 in IA.No.1/2023. BY ADVS.JOSE JOSEPH, SC, INCOME TAX DEPARTMENT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 22177 OF 2022 JUDGMENT Dated this the 22nd day of August 2023 The writ petition is filed, inter alia, to direct the first respondent to consider and dispose of Exts.P7 to P9 stay petitions filed by the petitioner.

The petitioner’s case is that, aggrieved by Exts.P1, P3 and P5 orders passed by the second respondent under Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, the petitioner has preferred statutory appeals before the first respondent. Along with the appeals, the petitioner has also filed Exts.P7, P8 and P9 stay petitions. During the pendency of the stay petitions, the third respondent has passed Ext.P10 order directing the petitioner to remit 20% of the demanded amount. The petitioner submits that the third respondent has no jurisdiction to pass the said order. Moreover, as the statutory appeals

WP(C) NO. 22177 OF 2022 and the stay petitions are pending consideration before the first respondent, notwithstanding Ext.P10 order, the first respondent may be directed to consider and dispose of Exts.P7 to P9, immediately. Hence, the writ petition.

Heard; Sri.Roshin Ipe Joseph, the learned counsel for the petitioner and Sri.Jose Joseph, the learned Standing Counsel appearing for the respondents.

Having considered the pleadings and materials on record, and taking note of the fact that the Exts.P7 to P9 stay petitions are pending consideration before the first respondent, in exercise of the extra ordinary powers of this Court under Article 226 of the Constitution of India, I deem it appropriate to direct the first respondent to consider and dispose of the same immediately.

WP(C) NO. 22177 OF 2022 Resultantly, I order the writ petition as follows: (i) The first respondent is directed to consider and dispose of Exts.P7 to P9 stay petitions, in accordance with law and as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of the judgment, untrammelled by any observation made in Ext.P10 letter. (ii) If the first respondent proposes to pass any conditional interim order of stay, he shall state reasons for the same. (iii) Until such time orders are passed on Exts.P7 to P9, all further coercive proceedings as against the petitioner shall stand deferred. C.S.DIAS JUDGE jes

WP(C) NO. 22177 OF 2022

Appendix — schedule of exhibits

APPENDIX PETITIONER EXHIBITS: Exhibit P1 TRUE COPY OF THE ORDER DATED 27-4-2020 UNDER S.10(3) OF THE BLACK MONEY (UNDISCLOSED FOREIGN INCOME AND ASSETS) AND IMPOSITION OF TAX ACT, 2015. Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DATED 27-4-2020 ISSUED TO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACK MONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDING FROM THE PETITIONER A SUM OF RS.1,34,45,129/- (RUPEES ONE CRORE THIRTY FOUR LAKHS FORTY FIVE THOUSAND ONE HUNDRED AND TWENTY NINE ONLY). Exhibit P3 TRUE COPY OF THE ORDER DATED 16-3-2022 PASSED BY SECOND RESPONDENT UNDER S.41 OF THE BLACK MONEY (UNDISCLOSED FOREIGN INCOME AND ASSETS) AND IMPOSITION OF TAX ACT, 2015. Exhibit P4 TRUE COPY OF THE DEMAND NOTICE DATED 16-3-2022 ISSUED TO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACK MONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDING A SUM OF RS.4,03,35,387/- (RUPEES FOUR CRORES THREE LAKHS THIRTY FIVE THOUSAND THREE HUNDRED AND EIGHTY SEVEN ONLY) FROM THE PETITIONER. Exhibit P5 TRUE COPY OF THE ORDER DATED 16-3-2022 PASSED BY SECOND RESPONDENT UNDER S.43 OF THE BLACK MONEY (UNDISCLOSED FOREIGN INCOME AND ASSETS) AND IMPOSITION OF TAX ACT, 2015. Exhibit P6 TRUE COPY OF THE DEMAND NOTICE DATED 16-3-2022 ISSUED TO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACK MONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDING A SUM OF RS.10,00,000/- (RUPEES TEN LAKHS ONLY) FROM THE PETITIONER. Exhibit P7 TRUE COPY OF THE APPLICATION FILED BY PETITIONER BEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P2. Exhibit P8 TRUE COPY OF THE APPLICATION FILED BY PETITIONER BEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P4. Exhibit P9 TRUE COPY OF THE APPLICATION FILED BY PETITIONER BEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P6. WP(C) NO. 22177 OF 2022 :: 6 :: Exhibit P10 TRUE COPY OF THE LETTER DATED 17-6-2022 ISSUED BY FIRST RESPONDENT TO THE PETITIONER. Exhibit P11 TRUE COPY OF CBDT OM NO. 404/72/93-ITCC (FTS:284146) DATED 31-7-2017, WHICH IS REFERRED TO IN EXT.P10. Exhibit P12 TRUE COPY OF O.M. NO.404/72/93-ITCC DATED 29-2-2016 ISSUED BY CBDT. Exhibit P13 TRUE COPY OF EXTRACT OF GUIDELINES ISSUED BY CBDT DATED 21-3-1996 PARTIALLY MODIFYING INSTRUCTION NO.1914 DATED 2-12-1993. Exhibit P14 TRUE COPY OF EXTRACT OF INSTRUCTION NO.1914 DATED 21-3-1993 ISSUED BY CBDT.

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