BINOY KODIYERI, vs. INCOME TAX

WP(C)/25687/2023HC KeralaKLHC01056304202310 August 2023Author: HONOURABLE MR.JUSTICE C.S.DIAS7 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court disposed of the writ petition by issuing specific directions. It held that the petitioner should file stay petitions before the 3rd respondent within one week of receiving a certified copy of the judgment. If filed within this period, the 3rd respondent was directed to transmit these stay petitions to the 2nd respondent. The 2nd respondent was then mandated to consider the stay petitions expeditiously, within three months of receiving a certified copy of the judgment. The court also stipulated that if the 2nd respondent intended to pass a conditional interim order of stay, reasons must be provided. Crucially, until orders were passed on the stay petitions, and provided the petitioner complied with the directions, all further proceedings pursuant to the assessment orders and the demand notice (Ext.P19) were to stand deferred. The court did not decide the merits of the appeals themselves.

What were the facts?

The petitioner, Binoy Kodiyeri, filed a writ petition before the High Court of Kerala seeking a direction to keep a demand notice (Ext.P19) in abeyance until a decision was taken on his pending appeals (Exts.P3, P9, P12, P15, and P18) before the National Faceless Appellate Authority (2nd respondent). The petitioner was aggrieved by assessment orders (Exts.P1, P7, P10, P13, and P16) passed by the Assistant Commissioner of Income Tax (3rd respondent). He contended that he was unable to file stay petitions as the necessary link had not been provided, and he feared enforcement of the assessment orders through the demand notice during the pendency of his appeals.

What were the issues?

1. Whether the High Court should direct the respondents to keep the demand notice (Ext.P19) in abeyance until a decision is taken on the petitioner's pending appeals before the 2nd respondent, considering the petitioner's inability to file stay petitions due to a missing link. Assessee's Contention: The petitioner argued that the demand notice should be held in abeyance as he was unable to file stay petitions due to a technical issue (missing link) and feared coercive action during the pendency of his appeals. He relied on the principle that assessment orders should not be enforced while appeals are pending. Revenue's Contention: The revenue, through the Assistant Commissioner, submitted that the petitioner's claim of a missing link was incorrect. However, they acknowledged that it was open for the petitioner to prefer stay petitions before the 3rd respondent, who would then transmit them to the 2nd respondent for consideration.

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 10TH DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 WP(C) NO. 25687 OF 2023 PETITIONER/S: BINOY KODIYERI, AGED 42 YEARS BINOY KODIYERI, S/O. KODIYERI BALAKRISHNAN, 17A, ARTECH MEENAKSHI, VAZHUTHACAUD THIRUVANANTHAPURAM, KERALA, PIN - 695014 BY ADVS. NINU M.DAS S.A.ANAND RESPONDENT/S: 1 COMMISSIONER OF INCOME TAX [APPEALS] INCOME TAX DEPARTMENT, OFFICE OF THE INCOME TAX THIRUVANANTHAPURAM DISTRICT, KERALA, PIN - 695003 2 NATIONAL FACELESS APPELLATE AUTHORITY NATIONAL FACELESS APPELLATE AUTHORITY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE, (CENTRAL BOARD OF DIRECT TAXES) ROOM NO. 245-A, NORTH BLOCK, NEW DELHI REPRESENTED BY ASSISTANT COMMISSIONER OF INCOME TAX, PIN - 110001 3 THE ASSISTANT COMMISSIONER OF INCOME TAX THE ASSISTANT COMMISSIONER OF INCOME TAX INCOME TAX DEPARTMENT CIRCLE CENTRAL, AAYKAR BHAVAN, 1ST FLOOR KOWDIAR P.O., THIRUVANANTHAPURAM DISTRICT KERALA, PIN - 695003 OTHER PRESENT: SRI JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 25687 OF 2023 2

JUDGMENT The writ petition is filed to direct the respondents to keep in abeyance Ext.P19 demand notice, until such time a decision is taken on Exts.P3, P9, P12, P15 and P18 appeals pending before the 2nd respondent.

The petitioner's' case is that aggrieved by Exts.P1, P7, P10, P13 and P16 assessment orders, the petitioner has preferred Exts.P3, P9, P12, P15 and P18 appeals before the 2nd respondent. Now, during the pendency of the appeals, the 3rd respondent has issued Ext.P19 demand notice. The petitioner is unable to file stay petitions, as the link has not been provided to the petitioner. The petitioner is apprehensive that during the pendency of the appeals, the respondents may enforce the assessment orders through Ext.P19 demand notice. Hence, the writ petition.

Heard; Sri.Ninu M.Das, the learned Counsel appearing for the petitioner and Sri.Jose Joseph, the learned Counsel appearing for the respondents.

WP(C) NO. 25687 OF 2023 3

Sri.Jose Joseph, on instructions submitted that the contention of the petitioner that link was not provided is incorrect. Nonetheless, it would be up to the petitioner to prefer the stay petitions in the above appeals before the 3rd respondent, who in turn would transmit the same to the 2nd respondent for consideration.

Having considered the pleadings and materials on record and taking note of the fact that Exts.P3, P9, P12, P15 and P18 appeals are pending consideration before the 2nd respondent and that the 3rd respondent is willing to transmit the stay petitions to the 2nd respondent, I deem it appropriate to dispose of the writ petition. Resultantly, I order the writ petition as follows: (i) It would be upto the petitioner to file stay petitions in the above appeals within a period of one week from the date of receipt of a certified copy of this judgment by filing the WP(C) NO. 25687 OF 2023 4 stay petitions before the 3rd respondent. (ii) If the petitioner files the stay petitions before the 3rd respondent within the stipulated time period, the 3rd respondent shall transmit the same to the 2nd respondent. (iii) If the petitioner complies with the directions mentioned above and the 3rd respondent transmits the same to the 2nd respondent, the 2nd respondent shall consider the stay petitions filed in the above appeals, 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. (iv) If the 2nd respondent proposes to pass any conditional interim order of stay, it shall state reasons for the same. (v) Until such time, orders are passed on the proposed stay petitions, provided the WP(C) NO. 25687 OF 2023 5 petitioner does the same within the period fixed by this Court, all further proceedings pursuant to the assessment orders and Ext.P19 demand notice shall stand deferred. C.S.DIAS JUDGE rkc/10.08.23

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Appendix — schedule of exhibits

APPENDIX OF WP(C) 25687/2023 PETITIONER EXHIBITS Exhibit 1 TRUE COPY OF THE ASSESSMENT ORDER DATED 28.03.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit 2 TRUE COPY OF THE DEMAND NOTICE ISSUED DATED 28.03.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit 3 TRUE COPY OF FORM NO. 35 DOWNLOADED FROM THE TAX DEPARTMENT PORTAL AFTER THE COMPLETION OF E-FILING OF APPEAL FOR A/Y 2013-14 DATED 26/04/2022. Exhibit 4 TRUE COPY OF THE STATEMENT OF FACTS DATED 25/04/2022. Exhibit 5 TRUE COPY OF GROUNDS OF THE APPEAL DATED 25/04/2022. Exhibit 6 TRUE COPY OF THE ACKNOWLEDGEMENT BEARING NO. 597776610260422 Exhibit 7 TRUE COPY OF THE ASSESSMENT ORDER DATED 28/03/2022 ISSUED BY THE 2ND RESPONDENT. Exhibit 8 TRUE COPY OF THE DEMAND NOTICE ISSUED DATED 28/03/2022 ISSUED BY THE 2ND RESPONDENT. Exhibit 9 TRUE COPY OF FORM NO. 35 DOWNLOADED FROM THE TAX DEPARTMENT PORTAL AFTER THE COMPLETION OF E-FILING OF APPEAL FOR A/Y 2014-15 DATED 26/04/2022 Exhibit 10 TRUE COPY OF THE ASSESSMENT ORDER DATED 25/09/2021 ISSUED BY THE 2ND RESPONDENT. Exhibit 11 TRUE COPY OF THE DEMAND NOTICE DATED 25/09/2021 ISSUED BY THE 2ND RESPONDENT. Exhibit 12 TRUE COPY OF FORM NO. 35 DOWNLOADED FROM THE TAX DEPARTMENT PORTAL AFTER THE WP(C) NO. 25687 OF 2023 7 COMPLETION OF E-FILING OF APPEAL FOR A/Y 2015-16 DATED 25/10/2021. Exhibit 13 TRUE COPY OF THE ASSESSMENT ORDER DATED 28/03/2022 ISSUED BY THE 2ND RESPONDENT. Exhibit 14 TRUE COPY OF THE DEMAND NOTICE ISSUED DATED 28/03/2022 ISSUED BY THE 2ND RESPONDENT. Exhibit 15 TRUE COPY OF FORM NO. 35 DOWNLOADED FROM THE TAX DEPARTMENT PORTAL AFTER THE COMPLETION OF E-FILING OF APPEAL FOR A/Y 2017-18 DATED 26/04/2022. Exhibit 16 TRUE COPY OF THE ASSESSMENT ORDER DATED 28/03/2022 ISSUED BY THE 2ND RESPONDENT. Exhibit 17 TRUE COPY OF THE DEMAND NOTICE ISSUED DATED 28/03/2022 ISSUED BY THE 2ND RESPONDENT. Exhibit 18 TRUE COPY OF FORM NO. 35 DOWNLOADED FROM THE TAX DEPARTMENT PORTAL AFTER THE COMPLETION OF E-FILING OF APPEAL FOR A/Y 2018-19 DATED 26/04/2022. Exhibit 19 TRUE COPY OF THE DEMAND NOTICE DATED 05/04/2023 BY THE 3RD RESPONDENT

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