P.C.SUNNY vs. INCOME TAX OFFICER

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WP(C)/40350/2022HC KeralaKLHC01087476202213 December 2022Author: HONOURABLE MR. JUSTICE GOPINATH P.3 pages
AI SummaryRemanded

What did the High Court hold?

The High Court directed the 1st respondent (Income Tax Officer) to consider the petitioner's application for stay filed under Section 220(6) of the Income Tax Act within two months from the date of receipt of a certified copy of the judgment. Pending the decision on the stay application, all proceedings for recovery of amounts due under the order of assessment (Ext.P1) were to remain suspended. The Court did not decide on the merits of the stay application itself, only on the procedural direction to consider it.

What were the facts?

The petitioner, P.C. Sunny, received an order of assessment for assessment year 2018-19, leading to a demand notice. An appeal was filed before the appellate authority and was pending. The petitioner was subsequently asked to remit the outstanding amount and was informed that, as per a CBDT office memorandum dated 31-07-2017, stay on demand requires payment of 20% of the disputed demand. The petitioner filed an application for stay under Section 220(6) of the Income Tax Act, pending the appeal.

What were the issues?

1. Whether a direction should be issued to the Income Tax Officer (1st respondent) to consider and pass orders on the petitioner's stay application (Ext.P5) after providing an opportunity of being heard? Assessee's Contention: The petitioner sought a direction for the 1st respondent to consider and pass orders on Ext.P5, affording the petitioner an opportunity of being heard. Revenue's Contention: The Standing Counsel for the Income Tax Department had no objection to a direction being issued to the 1st respondent to consider Ext.P5.

Which sections of the Income-tax Act were involved?

Section 220(6)

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 GOPINATH P. TUESDAY, THE 13TH DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944 WP(C) NO. 40350 OF 2022 PETITIONER: P.C.SUNNY AGED 52 YEARS PANJIKARAN HOUSE, MUPLIYAM POST, THRISSUR DISTRICT - 680 312. REPRESENTED BY POWER OF ATTORNEY HOLDER, MR. V.P. PETER,S/O. POULOSE, S/O. POULOSE, AGED 59 YEARS, VAZHAKALAYIL HOUSE, MUPLIYAM P.O, THRISSUR-, PIN - 680312 BY ADVS. K.J.ABRAHAM NIKHIL JOHN RESPONDENTS: INCOME TAX OFFICER WARD INTERNATIONAL TAX, CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, KOCHI, ERNAKULAM DISTRICT., PIN - 682018 OTHER PRESENT: ADV. JOSE JOSPEH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.40350/2022 -

J U D G M E N T The petitioner suffered Ext.P1 order of assessment for assessment year 2018-19 under the provisions of Income Tax Act, 1961. Exhibit P2 demand notice has been issued to the petitioner in respect of the demand in Ext.P1 order of assessment. The petitioner filed Ext.P3 appeal before the 2nd respondent and the appeal is stated to be pending. In the meanwhile through Ext.P4 letter dated 17-11-2022, the petitioner has been called upon to remit the outstanding amount. The petitioner has also been informed that as per the revised office memorandum issued by CBDT dated 31-07-2017, stay on demand can be granted only on payment of 20% of the disputed demand. The petitioner has filed Ext.P5 application before the 1st respondent for stay under the Section 220(6) of the Income Tax Act, pending consideration of Ext.P3 appeal by the appellate authority.

2.

The learned counsel for the petitioner states that a direction may be issued to the 1st respondent to consider and pass orders on Ext.P5 after affording to the petitioner an opportunity of being heard.

3.

The Standing Counsel appearing for the Income Tax Department has no objection in the direction being issued to the 1st respondent to consider Ext.P5. 4. Having heard the learned counsel for the petitioner and the learned Standing counsel for the respondent department, this writ petition will stand disposed of directing the 1st respondent to consider Ext.P5 application for stay filed under Section 220 (6) of the Income Tax Act within a period of two months from the date of receipt of a certified copy of this judgment. Till such time as orders are passed on Ext.P5, all proceedings for recovery of the amounts due under Ext.P1 order of assessment shall remain suspended. GOPINATH P. JUDGE AMG

W.P (C) No.40350/2022 -

Appendix — schedule of exhibits
APPENDIX OF WP(C) 40350/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER DIN.ITBA/AST/5/143(3)/2019-20/1023545159(1) DATED 31.12.2019 FOR THE ASSESSMENT YEAR 2017-18 Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DIN- ITBA/AST/S/156/2019-20/1023545222(1) DATED 31.12.2019 Exhibit P3 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM NO. 35 DATED 30.01.2020 FOR THE ASSESSMENT YEAR 2017-18 Exhibit P4 TRUE COPY OF THE LETTER DIN.ITBA/ASK/F/73/2022- 23/1047483749(1) DATED 17.11.2022 Exhibit P5 TRUE COPY OF THE STAY APPLICATION WITH AFFIDAVIT DATED 03.12.2022 FILED BEFORE THE 1ST RESPONDENT

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