THUPPILIKAI HAMZA vs. ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/26549/2023HC KeralaKLHC01058199202316 August 2023Author: HONOURABLE MR.JUSTICE C.S.DIAS5 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court directed the second respondent (Commissioner of Income Tax (Appeals)) to consider and dispose of the stay petition (Ext.P8) expeditiously, in accordance with law, and at any rate, within a period of three months from the date of receipt of a certified copy of the judgment. The Court further stipulated that if the second respondent proposed to pass any conditional interim order of stay, reasons for the same must be stated. Crucially, until orders were passed on the stay petition, all further proceedings pursuant to the assessment order (Ext.P1) and the garnishee notices (Exts.P3 to P7) were ordered to be deferred. The primary principle established is that urgent matters concerning stay petitions should be addressed promptly by appellate authorities to prevent prejudice to the assessee.

What were the facts?

The petitioner, Thuppilikai Hamza, filed a writ petition before the High Court of Kerala seeking a direction to the second respondent, the Commissioner of Income Tax (Appeals), to expeditiously consider and dispose of his appeal (Ext.P2) and a stay petition (Ext.P8). The petitioner was aggrieved by an assessment order (Ext.P1) passed by the Assistant Commissioner of Income Tax. During the pendency of the appeal, notices (Exts.P3 to P7) were issued to garnishees (banks). The petitioner filed a stay petition on July 31, 2023, apprehending enforcement of these notices while the appeal and stay petition were pending. The High Court heard the petitioner and respondents 1, 2, 3, and 5, dispensing with notice to respondents 4, 6, and 7.

What were the issues?

1. Whether the High Court should direct the Commissioner of Income Tax (Appeals) to expeditiously consider and dispose of the pending stay petition filed by the assessee. Assessee's Contention: The assessee argued that the assessment order (Ext.P1) was under challenge in appeal (Ext.P2) and a stay petition (Ext.P8) was filed on July 31, 2023. The assessee apprehended that the revenue might enforce garnishee notices (Exts.P3 to P7) during the pendency of the appeal and stay petition, necessitating urgent consideration of the stay petition. Revenue's Contention: The judgment does not record any specific contentions from the revenue regarding the delay in disposing of the stay petition. However, the revenue was represented by counsel and participated in the proceedings.

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 C.S.DIAS WEDNESDAY, THE 16TH DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 WP(C) NO. 26549 OF 2023 PETITIONER: THUPPILIKAI HAMZA, VALAPPIL HOUSE, ABDU RAHIMAN NAGAR, ADBU RAHIMAN NAGAR S.O, MALAPURAM, PIN - 676305 BY ADVS.ANIL D. NAIR TELMA RAJU AADITYA NAIR RESPONDENTS: 1 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I, AAYAKAR BHAVAN, NORTH BLOCK, MANANCHIRA, KOZHIKODE, PIN – 673001 2 COMMISSIONER OF INCOME TAX (APPEALS) (deleted) NATIONAL FACELESS ASSESSMENT CENTRE (NFAC), NEW DELHI, PIN – 110001 (Respondent No.2 substituted) 2 THE COMMISSIONER OF INCOME TAX (APPEALS)-III, CR BUILDING, I.S. PRESS ROAD, KOCHI 682 036. (Substituted as second respondent as per the order dated 16.8.2023 in I.A.No.1 of 2023 in W.P.(C)No.26549/23) 3 THE MANAGER, STATE BANK OF INDIA, THIRURANGADI P.O, P.B. NO.4, RAHIM BUILDINGS, MALAPPURAM DISTRICT, KERALA, PIN – 676306 4 THE BRANCH MANAGER, HDFC BANK, THIRURANGADI P.O, PMH COMPLEX , GROUND FLOOR, MALAPPURAM DISTRICT, KERALA, PIN – 676306 5 THE BRANCH MANAGER, CANARA BANK, THIRURANGADI, NEXT TO PANCHAYAT OFFICE, MAIN ROAD CHEMMAD, , MALAPPURAM DISTRICT, KERALA, PIN – 676306 6 THE BRANCH MANAGER, INDUSTRIAL DEVELOPMENT BANK OF INDIA, SATYEN NIWASPAN, BAZAR CORNER OF M.G. ROAD &PAN BAZAR, S.C. KOZHIKODE, KOZHIKODE, PIN – 673001 7 THE BRANCH MANAGER, FEDERAL BANK, MAJESTIC TOWER, PARAPPANANGADI ROAD, CHEMMAD, THIRURANGADI P.O, MALAPPURAM DISTRICT, KERALA, PIN - 676306 SRI JOSE JOSEPH, SRI A KUMAR, SRI GOPIKRISHNAN NAMBIAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26549 OF 2023 :: 2 :: JUDGMENT Dated this the 16th day of August 2023 The writ petition is filed to direct the second respondent to consider and dispose of Ext.P2 appeal and Ext.P8 stay petition, expeditiously. 2. The petitioner’s case is that, aggrieved by Ext.P1 assessment order, the petitioner has preferred Ext.P2 appeal before the second respondent. During the pendency of the appeal, the respondents have issued Exts.P3 to P7 notices to the respondents 3 to 7, in the status of garnishees. Immediately, on 31.7.2023, the petitioner has preferred Ext.P8 stay petition before the second respondent. The petitioner apprehends that during the pendency of Exts.P2 and P8, the respondent may enforce Exts.P3 to P7 notices. Hence, the writ petition. 3. Heard; Sri.Anil D Nair, the learned counsel for the petitioner and Sri.Jose Joseph, the learned Standing WP(C) NO. 26549 OF 2023 :: 3 :: Counsel appearing for respondents 1 and 2, Sri.A.Kumar, the learned counsel appearing for the third respondent and Sri.Gopikrishnan Nambiar, the learned Standing Counsel appearing for the fifth respondent. In view of the limited relief that I propose to pass, I dispense with notice to the respondents 4, 6 and 7. 4. Having considered the pleadings and materials on record and taking note of the fact that Ext.P8 stay petition is pending consideration before the second respondent since 31.7.2023, I deem it appropriate to direct the second respondent to consider and dispose of the same immediately. Resultantly, I order the writ petition as follows: (i) The second respondent is directed to consider and dispose of Ext.P8 stay petition, 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.

WP(C) NO. 26549 OF 2023 (ii) If the second respondent proposes to pass any conditional interim order of stay, it shall state reasons for the same. (iii) Until such time orders are passed on Ext.P8 stay petition, all further proceedings pursuant to Exts.P1 and P3 to P7 shall stand deferred. C.S.DIAS JUDGE jes

WP(C) NO. 26549 OF 2023 APPENDIX PETITIONER’S EXHIBITS: Exhibit P1OF THE ASSESSMENT ORDER FOR THE YEAR 2013-2014 DATED 31.03.2023 ISSUED BY THE 1ST RESPONDENT. Exhibit P2OF THE APPEAL FOR THE ASSESSMENT YEAR 2013-2014 FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER Exhibit P3OF NOTICE DATED 13.7.2023 SERVED ON THE 3RD RESPONDENT. Exhibit P4OF NOTICE DATED 13.7.2023 SERVED ON THE 4TH RESPONDENT. Exhibit P5OF THE NOTICE DATED 13.7.2023 SERVED ON THE 5TH RESPONDENT. Exhibit P6OF THE NOTICE DATED 13.7.2023 SERVED ON THE 6TH RESPONDENT. Exhibit P7OF NOTICE DATED 13.7.2023 SERVED ON THE 7TH RESPONDENT. Exhibit P8OF THE STAY PETITION FOR THE ASSESSMENT YEAR 2013-2014 FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER.

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