KAY KAY ENTERPRISES vs. THE INCOME TAX OFFICER

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WP(C)/6094/2019HC KeralaKLHC01015938201928 February 2019Author: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU3 pages
AI SummaryRemanded

What did the High Court hold?

The High Court acknowledged that the petitioner had exercised their statutory remedy by filing an appeal in time and had also filed a stay petition. The Court found that procedural fairness dictates that the revenue authorities should wait before taking further steps until the appellate authority decides on the stay petition. Therefore, the writ petition was disposed of with a direction to the respondent authority to defer coercive steps until the Commissioner of Income Tax (Appeals) considers the stay petition. The Court also expressed hope that the Commissioner would dispose of the stay petition expeditiously. No specific finding was made on the merits of the assessment order itself, as the petition was disposed of on procedural grounds.

What were the facts?

The petitioner, Kay Kay Enterprises, an assessee, challenged an assessment order passed by the Income Tax Officer (Ward 2(2), Thrissur) before the Commissioner of Income Tax (Appeals). The petitioner filed an appeal and a stay petition. The grievance in this writ petition is that the revenue authorities are initiating coercive steps before the appellate authority could decide on the stay petition. The petitioner is seeking a direction to defer coercive steps until the stay petition is considered.

What were the issues?

1. Whether the petitioner has exhausted his statutory remedy by filing an appeal against the assessment order? (Question of fact) 2. Whether coercive steps can be taken by the revenue authorities before the appellate authority decides on the stay petition filed by the assessee? (Question of mixed law and fact) Assessee's Contention: The petitioner argues that they have filed an appeal and a stay petition within the stipulated time. They contend that coercive steps should not be taken by the revenue authorities while the stay petition is pending before the appellate authority, as this would prejudice their case. Revenue's Contention: The judgment does not record any specific contentions from the revenue's side regarding the issues raised by the petitioner. The learned Government Pleader was heard, but their arguments are not detailed 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 DAMA SESHADRI NAIDU THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940 WP(C).No. 6094 of 2019 PETITIONER/S: KAY KAY ENTERPRISES X/78, KUNNATH COMPLEX, VARAVOOR, WADAKKANCHERY, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, SRI.K.K.MOITHEEN, BY ADVS. SRI.N.MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENT/S: 1 THE INCOME TAX OFFICER WARD 2(2), INCOME TAX DEPARTMENT, THRISSUR-680001. 2 THE COMMISSIONER OF INCOME TAX(APPEALS), INCOMD TAX DEPARTMENT, THRISSUR-680001, OTHER PRESENT: SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- W.P.(C). No. 6094 of 2019

JUDGMENT The petitioner, an assessee under the Income Tax Act, on the rolls of the 1st respondent, questioned the Ext.P1 assessment order, before the 2nd respondent. The petitioner has also filed a stay petition in the appeal. Ventilating his grievance that the authorities are taking coercive steps before the appellate authority could consider the stay petition, the petitioner has filed this writ petition.

2.

Heard the learned counsel for the petitioner and the learned Government Pleader.

3.

I reckon the petitioner has exercised on time his statutory remedy of filing an appeal. It appears that he has also filed a stay petition. Procedural fairness demands that the authorities may wait, before taking further steps, until the appellate authority decides on the stay petition. Therefore, I dispose of the writ petition directing the respondent authority to defer coercive steps until the 2nd

-3- W.P.(C). No. 6094 of 2019 respondent considers the stay petition. I also hope that the 2nd respondent will dispose of the stay petition expeditiously. DAMA SESHADRI NAIDU JUDGE das

Appendix — schedule of exhibits
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY 1ST RESPONDENT FOR THE YEAR 2016-17 DATED 28.12.2018. EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE DATED 28.12.2018. EXHIBIT P3 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28/01/2019. EXHIBIT P4 TRUE COPY OF THE STAY ORDER PASSED BY 1ST RESPONDENT DATED 31/01/2019. EXHIBIT P5 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 07/02/2019.

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