M/S. SUNNY SILKS vs. ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/27111/2023HC KeralaKLHC01059453202317 August 2023Author: HONOURABLE MR.JUSTICE C.S.DIAS4 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court directed the third respondent (DCIT) to consider and dispose of the petitioner's stay petition (Ext P5) expeditiously, in accordance with law. The disposal is to be completed within three months from the date of receipt of a certified copy of the judgment, after providing the petitioner an opportunity of being heard. The Court also stipulated that if the DCIT proposed to pass a conditional order of stay, reasons must be provided. Crucially, until an order is passed on the stay petition, all further proceedings pursuant to the assessment order (Ext P1) and the subsequent letter (Ext P4) were deferred. The Court did not decide on the merits of the appeal or the stay petition itself, but rather on the procedural aspect of ensuring the stay petition's timely consideration.

What were the facts?

The petitioner, M/s. Sunny Silks, filed a writ petition before the High Court of Kerala seeking a direction to the third respondent, the Deputy Commissioner of Income Tax (DCIT), to consider and dispose of their stay petition (Ext P5) expeditiously. The petitioner had filed an appeal (Ext P3) before the Commissioner of Income Tax (Appeals) against an assessment order (Ext P1). During the pendency of this appeal, the DCIT issued a letter (Ext P4). The petitioner then filed a stay petition (Ext P5) before the DCIT and apprehended enforcement of Exts P1 and P4 during the pendency of their appeal and stay petition. The writ petition was filed to ensure the stay petition was considered.

What were the issues?

1. Whether the third respondent (DCIT) should be directed to consider and dispose of the petitioner's stay petition (Ext P5) expeditiously, in accordance with law and within a stipulated timeframe? (Question of procedure and administrative direction). Assessee's Contention: The petitioner argued that their stay petition (Ext P5) was pending before the third respondent and they apprehended enforcement of the assessment order (Ext P1) and the subsequent letter (Ext P4) during the pendency of their appeal (Ext P3) and stay petition. They sought a direction for expeditious disposal of the stay petition. Revenue's Contention: The judgment records that Sri. Jose Joseph, the learned standing counsel for the respondents, was heard. No specific arguments or contentions from the revenue's side regarding the merits of the stay petition or the delay in its disposal are recorded.

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 C.S.DIAS THURSDAY, THE 17TH DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 WP(C) NO. 27111 OF 2023 PETITIONER: M/S. SUNNY SILKS XXVIII/ 616A, CONVENT ROAD, CHALAKUDY P.O, THRISSUR DISTRICT. REPRESENTED BY MANAGING PARTNER P.C. SUNNY, S/O. P.L.CHAKKAPPAN, PANJIKARAN HOUSE, MUPLIYAM POST, THRISSUR DISTRICT., PIN – 680307 BY ADVS. K.J.ABRAHAM NIKHIL JOHN AKHIL SHAJI RESPONDENTS: 1 ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 2(1), AAYAKAR BHAVAN, INCOME TAX OFFICE, SHAKTHANTHAMPURAN NAGAR, THRISSUR DISTRICT, PIN – 680001 2 COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS APPEAL CENTRE (NFAC), INCOME TAX DEPARTMENT, NEW DELHI, PIN – 110001 3 DEPUTY COMMISSIONER OF INCOME TAX DCIT CIRCLE 1(1), & TPS, AAYAKAR BHAVAN, INCOME TAX OFFICE, SHAKTHANTHAMPURAN NAGAR, THRISSUR DISTRICT, PIN – 680001 OTHER PRESENT: SRI JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.27111/2023 -:2:- Dated this the 17th day of August, 2023

J U D G M E N T The writ petition is filed to direct the third respondent to consider and dispose of Ext P5 stay petition, expeditiously.

The petitioner’s case is that, aggrieved by Ext P1 assessment order, the petitioner has preferred Ext P3 appeal before the second respondent. During the pendency of the appeal, the third respondent has issued Ext P4 letter. Immediately, the petitioner has filed Ext P5 stay petition before the third respondent. The petitioner is apprehensive that the third respondent may enforce Exts P1 & P4 during the pendency of Exts P3 & P5. Hence, the writ petition.

Heard; Sri. K.J.Abraham, the learned counsel appearing for the petitioner and Sri.Jose Joseph, the learned standing counsel appearing for the respondents.

Having considered the pleadings and materials on record and taking note of the fact that Ext P5 stay petition is pending consideration before the third respondent, I deem it appropriate to dispose of the writ petition in the following manner: (i) The third respondent is directed to consider and dispose of Ext P5 stay petition, in accordance with law and as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment, after affording the petitioner an opportunity of being heard. (ii) Needless to mention, if the third respondent proposes to pass a conditional order of stay, he shall state reasons for the same. (iii) Until such time orders are passed on Ext P5 stay petition, all further proceedings pursuant to Exts P1 & P4 shall stand deferred. C.S.DIAS,JUDGE DST/17.08.23 //// P.A.To Judge

Appendix — schedule of exhibits

APPENDIX PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER NO.ITBA/AST/S/143(3)/2019-20/1022570891(1) DATED 18.12.2019 PASSED BY THE 1ST RESPONDENT FOR THE ASSESSMENT YEAR 2017-18 EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE NO.ITBA/AST/S/156/2019-20/1022570948(1) DATED 18.12.2019 ISSUED BY THE 1ST RESPONDENT FOR THE ASSESSMENT YEAR 2017-18 EXHIBIT P3 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM NO.35 DATED 17.01.2020 EXHIBIT P4 TRUE COPY OF THE ISSUE LETTER NO. ITBA/RCV/F/17/2023-24/1054896700(1) DATED 07.08.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE STAY APPLICATION ALONG WITH AFFIDAVIT DATED 10.08.2023 SUBMITTED BEFORE THE 3RD RESPONDENT RESPONDENT’S EXHIBITS: NIL

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