ANISH ZACHARIAH vs. THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX

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WP(C)/21341/2019HC KeralaKLHC01054202201905 August 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI5 pages
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What did the High Court hold?

The High Court, having perused the assessment orders, penalty orders, appeals, and stay petitions, was prima facie satisfied that a case was made out for issuing necessary directions. The Court held that the appellate authority (2nd respondent) should consider and dispose of the stay petitions (Exts.P9, P10, P11, P12, P19, P20, and P21) as early as possible, preferably within two months from the date of receipt of a copy of the judgment. Additionally, the respondents were directed not to take coercive steps or recover the amounts determined in the orders under appeal for ten weeks from the date of the judgment. The Court did not decide on the merits of the appeals or the stay petitions themselves, but rather on the procedural aspect of their expeditious disposal and a temporary stay on recovery.

What were the facts?

The petitioner, Anish Zachariah, filed writ petitions before the High Court of Kerala challenging orders of assessment and penalty passed under the Income Tax Act. He had filed appeals against these orders, along with stay petitions. The petitioner contended that the mere pendency of appeals does not grant a stay and that the delay in disposing of stay petitions by the appellate authority (the Commissioner of Income Tax (Appeals)) was leading to the assessing officer initiating recovery proceedings. This, the petitioner argued, would render the statutory appeals ineffective. The petitioner sought a direction for the expeditious disposal of the pending stay petitions.

What were the issues?

1. Whether the High Court should issue a direction to the appellate authority to expeditiously consider and dispose of pending stay petitions filed by the assessee. The assessee argued that the delay in disposing of stay petitions by the appellate authority was prejudicial, as it allowed the assessing officer to initiate recovery proceedings, potentially rendering the appeals infructuous. The assessee relied on the principle that the law provides for protecting the interest of an appellant pending appeal and that orders on stay petitions should be passed promptly. The revenue's contentions are not recorded 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 S.V.BHATTI MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941 WP(C).No.21341 OF 2019(P) PETITIONER : ANISH ZACHARIAH, KADAKKETHU HOUSE, RANNI P.O., THOTTAMON, PATHANAMTHITTA, KERALA-689 672. BY ADVS. SRI.ASWIN GOPAKUMAR SRI.ANWIN GOPAKUMAR SMT.KALA G.NAMBIAR SRI.K.AMALNATH NAIK SRI.RENOY VINCENT SRI.NIRANJAN SUDHIR RESPONDENTS : 1 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, I S PRESS ROAD, KACHERIPADY, ERNAKULAM, KERALA-682 018. 2 THE COMMISSIONER OF INCOME TAX (APPEALS) OFFICE OF THE COMMISSIONER OF INCOME TAX, LAL BAHADUR SASTRI ROAD, PUBLIC LIBRARY BUILDING, KOTTAYAM-686 001. 3 INCOME TAX OFFICER, WARD-I AND TPS, THRIRUVALLA, KOLLAM-691001. OTHER PRESENT: SC SRI.JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.21341 OF 2019(P) 2

JUDGMENT The petitioner filed appeals in Exts.P5, P6, P7 and P8 aggrieved by the orders of assessment in Exts.P1, P2, P3 and P4 and appeals in Exts.P16, P17 and P18 aggrieved by the orders of penalty in Exts.P13, P14, and P15 made under the Income Tax Act. The petitioner has filed Exts.P5, P6, P7 and P8 appeals with Exts.P9, P10, P11 and P12 stay petitions and Exts.P16, P17 and P18 appeals with Exts.P19, P20 and P21 stay petitions. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Exts.P9, P10, P11, P12, P19, P20 and P21 stay petitions expeditiously.

2.

The case of petitioner is that either the mere filing of appeal or mere pendency of appeal does not amount to granting stay by the appellate authority. The delay in considering and disposing of Exts.P9, P10, P11, P12, P19, P20 and P21 results in the assessing officer taking steps for recovering the tax amount which is under challenge in Exts.P5, P6, P7 , P8, P16, P17 and P18. The assessing officer, if is successful in his effort the statutory appeal would become either academic or ineffective. It is further contended by the petitioner that in the manner the law provides for protecting the interest of appellant pending appeal, the orders on stay petitions are passed expeditiously.

WP(C).No.21341 OF 2019(P) 3

Hence the writ petition.

3.

Perused Exts.P1, P2, P3, P4 assessment orders, Exts. P13, P14 and P15 orders of penalty, Exts.P5, P6, P7 , P8, P16, P17 and P18 appeals and Exts.P9, P10, P11, P12, P19, P20 and P21 stay petitions. Prima facie I am satisfied that a case is made out for issuing necessary directions to 2nd respondent to dispose of Exts.P9, P10, P11, P12, P19, P20 and P21 stay petitions respectively. Having regard to the limited prayer and the grounds referred to above, this Court is satisfied that the writ petition can be disposed of by this order: (a) The appellate authority/ 2nd respondent considers and disposes of Exts.P9, P10, P11, P12, P19, P20 and P21 petitions as early as possible, preferably within two months from the date of receipt of copy of this judgment. (b) The respondents are directed not to take coercive steps or recover the amounts determined in the orders under appeal for ten weeks from today. S.V. BHATTI ,

JUDGE // NS P.A. To Judge

WP(C).No.21341 OF 2019(P) 4

Appendix — schedule of exhibits
APPENDIX PETITIONER'S EXHIBITS : EXHIBIT P1 A TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 3RD RESPONDENT FOR THE YEAR 2012-13. EXHIBIT P2 A TRUE COPY OF THE ASSESSMENT ORDER DATED PASSED BY THE 3RD RESPONDENT FOR THE YEAR 2013-14. EXHIBIT P3 A TRUE COPY OF THE ASSESSMENT ORDER DATED PASSED BY THE 3RD RESPONDENT FOR THE YEAR 2014-15. EXHIBIT P4 A TRUE COPY OF THE ASSESSMENT ORDER DATED PASSED BY THE 3RD RESPONDENT FOR THE YEAR 2015-16. EXHIBIT P5 A TRUE COPY OF THE ELECTRONICALLY GENERATED FORM NO.35 OBTAINED ON E-FILING OF THE APPEAL FOR THE PERIOD 2012-13. EXHIBIT P6 A TRUE COPY OF THE ELECTRONICALLY GENERATED FORM NO.35 OBTAINED ON E-FILING OF THE APPEAL FOR THE PERIOD 2013-14. EXHIBIT P7 A TRUE COPY OF THE ELECTRONICALLY GENERATED FORM NO.35 OBTAINED ON E-FILING OF THE APPEAL FOR THE PERIOD 2014-15. EXHIBIT P8 A TRUE COPY OF THE ELECTRONICALLY GENERATED FORM NO.35 OBTAINED ON E-FILING OF THE APPEAL FOR THE PERIOD 2015-16. EXHIBIT P9 A TRUE COPY OF THE STAY APPLICATION FILED ALONG WITH THE APPEAL FOR THE PERIOD 2011- 2012. EXHIBIT P10 A TRUE COPY OF THE STAY APPLICATION FILED ALONG WITH THE APPEAL FOR THE PERIOD 2012- 2013. EXHIBIT P11 A TRUE COPY OF THE STAY APPLICATION FILED ALONG WITH THE APPEAL FOR THE PERIOD 2013- 2014. EXHIBIT P12 A TRUE COPY OF THE STAY APPLICATION FILED ALONG WITH THE APPEAL FOR THE PERIOD 2014- 2015. WP(C).No.21341 OF 2019(P) 5 EXHIBIT P13 A TRUE COPY OF THE PENALTY ORDER PASSED BY THE 3RD RESPONDENT UNDER SECTION 271B FOR THE YEAR 2012-13. EXHIBIT P14 A TRUE COPY OF THE PENALTY ORDER PASSED BY THE 3RD RESPONDENT UNDER SECTION 271B FOR THE YEAR 2013-14. EXHIBIT P15 A TRUE COPY OF THE PENALTY ORDER PASSED BY THE 3RD RESPONDENT UNDER SECTION 271B FOR THE YEAR 2015-16. EXHIBIT P16 A TRUE COPY OF THE ELCTRONICALLY GENERATED FORM NO.35 OBTAINED ON E-FILING OF THE APPEAL FOR THE PERIOD 2012-13. EXHIBIT P17 A TRUE COPY OF THE ELCTRONICALLY GENERATED FORM NO.35 OBTAINED ON E-FILING OF THE APPEAL FOR THE PERIOD 2013-14. EXHIBIT P18 A TRUE COPY OF THE ELCTRONICALL GENERATED FORM NO.35 OBTAINED ON E-FILING OF THE APPEAL FOR THE PERIOD 2015-16. EXHIBIT P19 A TRUE COPY OF THE STAY APPLICATION FILED ALONG WITH THE APPEAL FOR THE PERIOD 2012-13. EXHIBIT P20 A TRUE COPY OF THE STAY APPLICATION FILED ALONG WITH THE APPEAL FOR THE PERIOD 2013-14. EXHIBIT P21 A TRUE COPY OF THE STAY APPLICATION FILED ALONG WITH THE APPEAL FOR THE PERIOD 2015-16. RESPONDENT'S EXHIBITS : NIL

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