ESATTO BUILDERS PRIVATE LIMITED vs. INCOME TAX APPELLATE TRIBUNAL

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WP(C)/33625/2023HC KeralaKLHC01075080202312 October 2023Author: HONOURABLE MR. JUSTICE D. K. SINGH4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the writ petition with a direction to the petitioner to make the required pre-deposit of the assessed tax within ten days from the date of the order. If the deposit is made, the ITAT is directed to hear and decide the petitioner's stay application (Exhibit P5) along with their appeal (Exhibit P4) on merits expeditiously, after giving the petitioner an opportunity of hearing. For a period of 15 days from the date of the order, no coercive steps are to be taken against the petitioner pursuant to the assessment order (Exhibit P1). The issue of the merits of the appeal itself was not decided, nor was the validity of the original assessment or the NFAC's order.

What were the facts?

The petitioner, Esatto Builders Private Limited, is challenging an assessment order dated March 30, 2015, for assessment year 2012-2013, which finalized their total income at Rs. 1,88,38,176/- and demanded tax of Rs. 82,93,890/-. An appeal filed before the National Faceless Assessment Centre (NFAC) was dismissed on May 15, 2023, for failure to substantiate claims. The petitioner then filed an appeal (ITA No. 559/2023) before the Income Tax Appellate Tribunal (ITAT), Kochi, along with a stay petition. The petitioner admitted to not having made the required pre-deposit for the stay application. The petitioner's counsel stated they would deposit the required pre-deposit within 10 days.

What were the issues?

1. Whether the Income Tax Appellate Tribunal (ITAT) should be directed to consider the petitioner's appeal (ITA No. 559/2023) and stay petition (Exhibit P5) and pass orders thereon after providing a hearing, considering the petitioner's undertaking to make the required pre-deposit. Assessee's Contention: The petitioner seeks a direction to the ITAT to hear and decide their appeal and stay petition on merits after affording an opportunity of hearing. They undertake to deposit the required pre-deposit within 10 days. Revenue's Contention: The judgment does not record any specific contention from the revenue. However, the context implies the revenue would rely on the existing assessment and appellate orders, and the statutory requirement of pre-deposit for a stay.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 250

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 DINESH KUMAR SINGH THURSDAY, THE 12TH DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 WP(C) NO. 33625 OF 2023 PETITIONER: ESATTO BUILDERS PRIVATE LIMITED 28/229-A5,229 A6 JP COMPLEX, NEAR CIVIL STATION, QUILANDY KOZHIKKODE, KERALA,REPRESENTED BY AUTHORISED SIGNATORY DIJIN T.V, PIN – 673 305. BY ADV JESTIN MATHEW RESPONDENTS: 1 INCOME TAX APPELLATE TRIBUNAL KOCHI, 1ST FLOOR, BLOCK C-1 AND C-LL, KENDRIYA BHAVAN, KAKKANAD, KERALA,, PIN – 682 030. 2 NATIONAL FACELESS ASSESSMENT CENTRE (NFAC) INCOME TAX DEPARTMENT, MINISTRY OF FINANCE, INSIDE JAWAHARLAL NEHRU STADIUM, NEW DELHI,, PIN – 110 001. 3 ASSISTANT COMMISSIONER OF INCOME TAX OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 2(1), KOZHIKODE, PIN – 673 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 33625/2023 : 2 : DINESH KUMAR SINGH, J. --------------------------------------------------------- W.P.(C). No. 33625 of 2023 --------------------------------------------------------- Dated this the 12th day of October, 2023.

JUDGMENT The present writ petition has been filed by the petitioner seeking a direction to the first respondent i.e., the Income Tax Appellate Tribunal, Kochi to consider Exhibit P4 appeal, ITA No. 559/2023, and Exhibit P5 stay petition and pass appropriate orders in accordance with law, after affording an opportunity of hearing to the petitioner.

2.

The assessment under Section 143(3) of the Income Tax Act, 1961 (‘Act, 1961’ for short) for the assessment year 2012-2013 was finalised vide Exhibit P1 assessment order dated 30.03.2015. The total income of the petitioner for the purpose of assessment was finalised at Rs.1,88,38,176/- and Exhibit P2 notice was issued to the petitioner demanding tax amount of Rs.82,93,890/-.

3.

Aggrieved by the same, the petitioner has filed an appeal under Section 250 of the Act, 1961 before the National Faceless Assessment Centre, respondent No.

2.

The appellate authority, vide Exhibit P3 order dated 15.05.2023, dismissed the appeal holding that the petitioner failed to substantiate its claim and confirmed the additions made to the returned income by the assessing authority.

: 3 : Impugning the said order passed by the first appellate authority, the petitioner has filed Exhibit P4 appeal before the Income Tax Appellate Tribunal, Kochi.

4.

Admittedly, the petitioner has not made the required pre deposit of the assessed tax for entertaining the application for stay. The learned counsel for the petitioner submits that the petitioner will deposit the required pre deposit of tax within a period of 10 days from today.

5.

Considering the said submission, the present writ petition is disposed of, with liberty to the petitioner to make deposit of the required pre deposit of the assessed tax within ten days from today. If the petitioner makes the payment as directed above, Exhibit P5 application for stay filed by the petitioner along with Exhibit P4 appeal shall be heard and decided on merits expeditiously, after giving an opportunity of hearing to the petitioner. For a period of 15 days, no coercive steps shall be taken against the petitioner pursuant to Exhibit P1 assessment order. Writ petition stands finally disposed of. DINESH KUMAR SINGH,

JUDGE.

Rv : 4 :

Appendix — schedule of exhibits
APPENDIX OF WP(C) 33625/2023 PETITIONER’S EXHIBITS: Exhibit P1 A TRUE COPY OF THE ASSESSMENT ORDER DATED 30.03.2015 ISSUED BY THE 3RD RESPONDENT Exhibit P2 A TRUE COPY OF THE NOTICE OF DEMAND DATED 30.03.2015 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT Exhibit P3 A TRUE COPY OF THE ORDER DATED 15.05.2023 PASSED BY THE 2ND RESPONDENT NATIONAL FACELESS APPEAL CENTER Exhibit P4 A TRUE COPY OF THE INCOME TAX APPEAL NO.559/2023 ALONG WITH FORM 36 APPEAL, STATEMENT OF FACTS AND GROUNDS OF APPEAL DATED 13.07.2023 FILED BY THE PETITIONER WITHOUT ANNEXURES BEFORE THE 1ST RESPONDENT Exhibit P5 A TRUE COPY OF THE APPLICATION FOR STAY DATED 13.07.2023 IN ITA 559/2023 RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge. rv

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