JOSHY P.MATHEW, vs. THE COMMISSIONER OF INCOME TAX (APPEAL-1)

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WP(C)/44310/2023HC KeralaKLHC01098506202305 January 2024Author: HONOURABLE MR. JUSTICE D. K. SINGH6 pages
AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the writ petition by directing the 1st respondent (Commissioner of Income Tax (Appeals) - 1) to finalize the appeals (Exts. P8 to P14) expeditiously, preferably within a period of four months. The Court also directed that for a period of four months, no coercive measures would be taken against the petitioner to enforce the demand arising from the assessment orders (Exts. P1 to P7). The Court did not decide on the merits of the appeals themselves but addressed the procedural delay and the need for timely disposal and a temporary stay on recovery.

What were the facts?

The petitioner, Joshy P. Mathew, is an assessee. A search under Section 132 of the Income Tax Act was conducted on the assessee group on January 10, 2008. This led to assessment proceedings under Section 153A read with Section 143(3) for assessment years 2002-03 to 2008-09. Assessment orders (Exts. P1 to P7) were passed on December 28, 2009. Appeals filed by the petitioner before the Commissioner of Income Tax (Appeals) - 1 (1st respondent) were dismissed on February 2, 2010 (Exts. P8 to P14). The Income Tax Appellate Tribunal (ITAT) set aside these appellate orders and remanded the matter back to the 1st respondent for fresh consideration on September 27, 2013. The petitioner filed the present writ petition because the appeals have not been disposed of by the 1st respondent for over ten years, and coercive measures are being taken to enforce the demand.

What were the issues?

1. Whether the High Court should issue a writ of mandamus directing the Commissioner of Income Tax (Appeals) - 1 to consider and dispose of the pending appeals (Exts. P8 to P14). 2. Whether the respondents should be restrained from initiating further proceedings based on the assessment orders (Exts. P1 to P7) during the pendency of the appeals before the 1st respondent. Assessee's Contention: The petitioner argued that despite the ITAT remanding the matter back to the 1st respondent over ten years ago, the appeals have not been disposed of. Meanwhile, the respondents are enforcing the demand arising from the assessment orders. The petitioner sought a direction for the disposal of appeals and a stay on coercive proceedings. Revenue's Contention: The Senior Standing Counsel for the Income Tax Department, on instruction, submitted that the 1st respondent would require at least four months to finalize the appeals.

Which sections of the Income-tax Act were involved?

Section 132,Section 153A,Section 143(3)

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 FRIDAY, THE 5TH DAY OF JANUARY 2024 / 15TH POUSHA, 1945 WP(C) NO. 44310 OF 2023 PETITIONER: JOSHY P.MATHEW, AGED 49 YEARS S/O. P.M.MATHEW, PANDAPLAKKAL HOUSE, KIZHAKKAMBALAM, ALUVA, PIN - 683564 BY ADV DINESH R.SHENOY RESPONDENTS: 1 THE COMMISSIONER OF INCOME TAX (APPEAL-1) SANJUVAN TOWERS, OLD RAILWAY STATION ROAD, ERNAKULAM, COCHIN., PIN - 682018 2 THE DEPUTY COMMISSIONER OF INCOME TAX (CIRCLE 1), ERNAKULAM, (AO),, PIN - 682013 3 THE COMMISSIONER OF INCOME TAX(APPEALS) III, SANJUVAN TOWERS, OLD RAILWAY STATION ROAD, ERNAKULAM, COCHIN, PIN - 682018 OTHER PRESENT: SUSIE B. VARGHESE-SR.SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Dated this the 5th day of January, 2024 The present writ petition has been filed seeking the following reliefs: a) Issue a writ of mandamus or any other appropriate writ, order or direction, to direct and to consider and dispose ext.P8 to P14 Appeals pending on its file. b) A writ, order or direction, directing the respondents not to initiate any further proceedings on the basis of the impugned assessment orders, (Exts.P1 to P7) during the pendency of the aforesaid appeals, (Exts.P8 to P14) without disposing of the same. c) Grant such other reliefs as are deemed fit and proper in the facts and circumstances of the case. d) Petitioner also prays that this Hon’ble Court may be pleased to dispense with the translation of the documents produced in the vernacular language.

2.

A search was conducted under the provisions of Section 132 of the Income Tax Act at the premises of the petitioner/assessee group on 10.01.2008 and proceedings were initiated for assessment of the petitioner’s income under Section 153A read with Section 143(3) of the Income Tax Act, 1961 for the assessment years 2002-03 to 2008-19. On conclusion of the proceedings, Exts P1 to P7 assessment orders came to be passed under the provisions of Section 153A read with Section 143(3) of the Income Tax Act on 28.12.2009. The petitioner aggrieved by the assessment orders in Exts.P1 to P7 had filed appeals before the 1st respondent. However, the 1st respondent dismissed the appeals vide orders in Exts.P8 to P14 dated 02.02.2010. 3. Against the said appellate orders passed by the 1st respondent, the petitioner filed 7 appeals before the Income Tax Appellate Tribunal being appeal Nos. ITA 283 to 289. The Income Tax Appellate Tribunal set aside the orders passed by the 1st respondent in Exts. P8 to P14 and remanded the matter back to the 1st respondent vide order dated 27.09.2013 for fresh consideration in the light of the judgment passed by this Court in W.P.(C.) No.34655 of 2011. 4. The learned counsel for the petitioner submits that more than ten years have passed since the matter was remanded back to the 1st respondent by the Income Tax Appellate Tribunal vide order dated 27.09.2013, however, till date appeals have not disposed of by the 1st respondent. In the meantime, the respondents are enforcing the demand in pursuance to the assessment orders in Exts.P1 to P7. This Court on the last date of hearing i.e, 05.01.2024 required the Senior Standing Counsel for the Income Tax Department to inform the Court regarding the time would be required for disposal of appeals in Exts. P8 to P14 pending before the 1st respondent.

5.

Ms. Susie B.Varghese, learned Senior Standing Counsel on instruction submits that the 1st respondent would requires at least four months time to finalize the appeals in Exts.P8 to P14. Considering the said stand of the respondents, the present writ petition is disposed of with direction to the 1st respondent to finalize the appeals in Exts.P8 to P14 expeditiously, preferably within a period of four months. For a period of four months, no coercive measure to be taken against the petitioner to enforce the demand in pursuance to Exts.P1 to P7 assessment orders. DINESH KUMAR SINGH JUDGE AP

Appendix — schedule of exhibits
APPENDIX OF WP(C) 44310/2023 PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF ASSESSMENT ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2002-2003 DATED 28/12/2009 Exhibit P2 TRUE PHOTOCOPY OF ASSESSMENT ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2003-2004 DATED 28/12/2009 Exhibit P3 TRUE PHOTOCOPY OF ASSESSMENT ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2004-2005 DATED 28/12/2009 Exhibit P4 TRUE PHOTOCOPY OF ASSESSMENT ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2005-2006 DATED 28/12/2009 Exhibit P5 TRUE PHOTOCOPY OF ASSESSMENT ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2006-2007 DATED 28/12/2009 Exhibit P6 TRUE PHOTOCOPY OF ASSESSMENT ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2007-2008 DATED 28/12/2009 Exhibit P7 TRUE PHOTOCOPY OF ASSESSMENT ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2008 - 2009 DATED 28/12/2009 Exhibit P8 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST PETITIONER FOR THE YEAR 2002-2003 DATED 1/2/2010 TOGETHER WITH COVERING LETTER DATED 2/2/2010 Exhibit P9 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST PETITIONER FOR THE YEAR 2003-2004 DATED 1/2/2010 TOGETHER WITH COVERING LETTER DATED 2/2/2010 Exhibit P10 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST PETITIONER FOR THE YEAR 2004-2005 DATED 1/2/2010 TOGETHER WITH COVERING LETTER DATED 2/2/2010 Exhibit P11 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST PETITIONER FOR THE YEAR 2005-2006 DATED 1/2/2010 TOGETHER WITH COVERING LETTER DATED 2/2/2010 Exhibit P12 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST PETITIONER FOR THE YEAR 2006-2007 DATED 1/2/2010 TOGETHER WITH COVERING LETTER DATED 2/2/2010 Exhibit P13 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST PETITIONER FOR THE YEAR 2007-2008 DATED 1/2/2010 TOGETHER WITH COVERING LETTER DATED 2/2/2010 WP(C)No.44310 of 2023 6 Exhibit P14 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST PETITIONER FOR THE YEAR 2008-2009 DATED 1/2/2010 TOGETHER WITH COVERING LETTER DATED 2/2/2010 Exhibit P15 TRUE PHOTOCOPY OF JUDGMENT DATED 25/1/2012 IN W.P.(C)NO.34655/2011, HIGH COURT OF KERALA. Exhibit P16 TRUE PHOTOCOPY OF ORDER DATED 27/9/2013 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH IN ITA NO.283 TO 289/COCH/2012 AND CONNECTED CASES. Exhibit P17 TRUE PHOTOCOPY OF APPLICATION FOR RECTIFICATION AND PETITION FOR STAY DATED 25/6/2014 FILED BY THE PETITIONER'S CHARTERED ACCOUNTANT BEFORE THE 2ND RESPONDENT Exhibit P18 TRUE PHOTOCOPY OF ORDER DATED 5/6/2014 ISSUED BY THE 2ND RESPONDENT Exhibit P19 TRUE PHOTOCOPY OF PETITION DATED 7/1/2015 SUBMITTED BY M/S.CHERIAN & CHERIAN, CHARTERED ACCOUNTANTS ON BEHALF OF THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P20 TRUE PHOTOCOPY OF THE ORDER DATED 26/9/2023 PASSED IN APPEAL NO.3/11137/2017-18 IN RESPECT OF ASSESSMENT YEAR 2005-2006 BY THE 3RD RESPONDENT.

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