ASHRAF HASSAN, vs. THE CENTRAL BOARD OF DIRECT TAXES,

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WP(C)/9679/2022HC KeralaKLHC01020603202205 December 2023Bench: HONOURABLE MR. JUSTICE D. K. SINGH5 pages
AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the writ petition with liberty to the petitioner to file an appeal before the Appellate Authority under the provisions of the Income Tax Act, 1961, against the assessment order and the penalty order. This includes filing an application for condonation of delay and an application for stay. The petitioner was granted three weeks to file these documents. The Appellate Authority was directed to provide the petitioner with a link for uploading the appeal and applications. Crucially, the Court ordered that further proceedings for the sale of the attached immovable properties would be stayed only until a decision was taken on the application for condonation of delay and stay by the Appellate Authority. The Court did not decide on the merits of the assessment or penalty orders themselves.

What were the facts?

The petitioner, Ashraf Hassan, a Non-Resident Indian residing in the UAE, filed a writ petition challenging notices issued by the Tax Recovery Officers for the collection of income tax amounting to Rs. 28,56,391/-. The Court had previously directed the petitioner to appear before the Tax Recovery Officer, where he was provided copies of assessment and penalty orders for assessment year 2014-15, passed under Section 144 read with Section 147 of the Income Tax Act, 1961, and a penalty order dated 09.11.2020. The petitioner's property was attached, but its sale was stayed by the Court. The petitioner's brother had already filed an appeal against these orders before the Commissioner of Appeals.

What were the issues?

1. Whether the petitioner has a statutory remedy of appeal against the assessment and penalty orders, and if so, should the writ petition be entertained? (Question of law and fact, concerning the availability of alternative remedies under the Income Tax Act, 1961). Assessee's Contention: The petitioner's brother has already filed an appeal against the assessment and penalty orders, which is pending before the Commissioner of Appeals. Revenue's Contention: The petitioner has not challenged the assessment order and the penalty order. The petitioner has a statutory remedy of appeal to challenge these orders before the Appellate Authority under the provisions of the Income Tax Act, 1961. The Revenue suggested that the Court may stay the sale of the immovable property until the disposal of the stay application by the Appellate Authority.

Which sections of the Income-tax Act were involved?

Section 144,Section 147

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 5TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 WP(C) NO. 9679 OF 2022 PETITIONER: ASHRAF HASSAN, AGED 69 YEARS, SON OF HASSAN, PERMANENT RESIDENCE AT NARAGATH KANDAATHIL, MASTER COACHING BOARD ROAD, OPPOSITE JLN STADIUM, KALOOR, KOCHI, ERNAKULAM-682017. BY ADVS. SRI. K. P. PRADEEP SRI. HAREESH M. R. SRI. SANAND RAMAKRISHNAN SMT. RASMI NAIR T. SRI. T. T. BIJU SMT. T. THASMI SMT. M. J. ANOOPA RESPONDENTS: 1 THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI-110001, REPRESENTED BY ITS CHAIRMAN. 2 PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, KERALA REGION, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, KOCHI, ERNAKULAM-682018. 3 TAX RECOVERY OFFICER, INCOME TAX, KANDOMKULATHY TOWERS, INCOME TAX OFFICE, OPP. MAHARAJAS COLLEGE GROUND, M.G.ROAD, KOCHI, ERNAKULAM-682011. 4 TAX RECOVERY OFFICER, TRO CENTRAL, KOCHI, INCOME TAX , KANDOMKULATHY TOWERS, INCOME TAX OFFICE, OPP. MAHARAJAS COLLEGE GROUND, M. G. ROAD, KOCHI, ERNAKULAM-682011. BY ADV. SRI. NAVANEETH M. NATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 9679 OF 2022 2 DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No.9679 of 2022 ------------------------- Dated this the 5th day of December, 2023 JUDGMENT 1. petitioner is a Non Resident Indian living in United Arab Emirates has filed this writ petition impugning Exhibits P-4 and P-5 notices issued by the 3rd and 4th respondents respectively for collection of income tax due to him to the extent of Rs. 28,56,391/-. This Court vide the interim order dated 22.03.2022 considering the submissions of the learned Standing Counsel notices, assessment orders etc., served on the petitioner/his representative. The petitioner was directed to appear before the Tax Recovery Officer pursuance to Exhibit P-7 notice, personally or through his representative on the date fixed. In pursuance to the direction given by this Court, the petitioner had appeared before the Tax Recovery Officer and the petitioner had been handed over the copy of the assessment orders as well as penalty orders passed under Section 144 read with Section 147 of the Income Tax Act, 1961 dated 23.12.2019 as well as the penalty order dated 09.11.2020 in respect of the assessment year 2014-15. The petitioner’s property has been

WP(C) NO. 9679 OF 2022 3 attached, however, the sale of the immovable property has not been effected as this Court has stayed the sale proceedings. 2. The learned Counsel for the petitioner submits that the brother of the petitioner had already filed appeal against the assessment order and penalty order which is pending before the Commissioner of Appeals; CIT (Appeals) – III. 3. Mr. Naveeth R. Nath, the learned Counsel for the Revenue submits that the petitioner has not challenged the assessment order and the penalty order. The petitioner has statutory remedy of appeal to challenge those orders before the Appellate Authority under the provisions of Income Tax Act, 1961. He further submits that this Court may stay the sale of the immovable property of the petitioner till disposal of the stay application by the Appellate Authority. 4. Considering the fair suggestion of the learned Counsel for the Revenue, the present writ petition is disposed of with liberty to the petitioner to file appeal before the Appellate Authority under the provisions of the Income Tax Act, 1961 against the assessment order and the penalty order along with the application for condonation of delay and application for stay. Petitioner may file the appeal and all

WP(C) NO. 9679 OF 2022 4 the applications within a period of three weeks from today. The Appellate Authority shall provide the link to the petitioner for uploading the appeal and the applications. Till the decision taken on the application for condonation of delay and stay, further proceedings for sale of the immovable properties which has been attached by the impugned notices shall take place.

Sd/- DINESH KUMAR SINGH JUDGE Svn

WP(C) NO. 9679 OF 2022 5 APPENDIX OF WP(C) 9679/2022 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.732/93 DATED 15.2.1993 OF SRO, ERNAKULAM EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.756/93 DATED 16.2.1993 OF SRO, ERNAKULAM EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF PASSPORT NO.Z3793237 DATED 19.2.2017 ISSUED AT DUBAI EXHIBIT P4 TRUE SCANNED COPY OF THE NOTICE NO.ITBA/RCV/S/ 301/2021-22/1039531712 (1) DATED 8.2.2022, ISSUED BY THE 3RD RESPONDENT AS SEEN AT THE DOOR OF THE RESIDENCE OF THE PETITIONER EXHIBIT P5 TRUE SCANNED COPY OF THE NOTICE NO.ITBA/COM/F/ 17/2021-22/10401711846(1) DATED 28.2.2022, ISSUED BY THE 4TH RESPONDENT AS SEEN AT THE DOOR OF THE RESIDENCE OF THE PETITIONER EXHIBIT P6 TRUE COPY OF THE REPLY DATED 8.3.2022 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF THE SUMMONS DATED 18.3.2022 NO.ITBA/COM/F/17/2021-22/1041005275(1) ISSUED BY THE 4TH RESPONDENT EXHIBIT P8 TRUE COPY OF THE ASSESSMENT ORDER DATED 23-12- 2019 ISSUED BY THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, KOTTAYAM EXHIBIT P9 TRUE COPY OF THE PENALTY ORDER DATED 09-11-2020 ISSUED BY THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, KOTTAYAM EXHIBIT P10 TRUE COPY OF THE DEMAND NOTICE DATED 06-10-2022 ISSUED BY THE 4TH RESPONDENT EXHIBIT P11 TRUE COPY OF THE DEMAND NOTICE DATED 29-11-2022 ISSUED BY THE 4TH RESPONDENT

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