THEKKINIAN POULOSE VARKEY vs. ASSISTANT COMMISSIONER OF INCOME TAX

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WP(C)/20204/2023HC KeralaKLHC01044190202321 June 2023Author: HONOURABLE MR.JUSTICE C.S.DIAS5 pages
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What did the High Court hold?

The High Court directed the second respondent, the Commissioner of Income Tax (Appeals), to consider and dispose of the stay petitions (Exts P4 and P6) expeditiously, within three months from the date of receiving a certified copy of the judgment, after providing the petitioner an opportunity to be heard. The Court also stipulated that if a conditional order of stay was proposed, the reasons for it must be stated. Furthermore, until orders were passed on the stay petitions, all further proceedings pursuant to the assessment order (Ext P1), penalty order (Ext P2), and the enforcement notice (Ext P7) were deferred. The High Court did not decide on the merits of the appeals or the assessment/penalty orders themselves, focusing solely on the procedural aspect of the pending stay petitions.

What were the facts?

The petitioner, Thekkiniyan Poulose Varkey, filed a writ petition before the High Court of Kerala seeking a direction to the second respondent, the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, New Delhi, to consider and dispose of pending appeals and stay petitions. The petitioner had filed appeals against an assessment order (Ext P1) and a penalty order (Ext P2) on December 18, 2019, and April 29, 2020, respectively. Stay petitions (Exts P4 and P6) were filed on January 1, 2020, and April 9, 2020. The petitioner contended that the second respondent had not considered these stay petitions, and the third respondent (DCIT Circle 1(1), Thrissur) had issued a notice (Ext P7) threatening to enforce the assessment and penalty orders, which would cause severe prejudice. The petitioner sought to defer further proceedings until the stay petitions were decided.

What were the issues?

1. Whether the High Court should direct the Commissioner of Income Tax (Appeals) to consider and dispose of pending stay petitions filed by the petitioner. Assessee's Contention: The petitioner argued that appeals and stay petitions were filed against assessment and penalty orders, but the Commissioner of Income Tax (Appeals) had not considered the stay petitions. The issuance of a notice for enforcement of the orders by the third respondent would cause severe prejudice and hardship. Therefore, the High Court should direct the disposal of the stay petitions and defer further proceedings. Revenue's Contention: The judgment records that the learned counsel for the respondents (Assistant Commissioner of Income Tax, Commissioner of Income Tax (Appeals), and Commissioner of Income Tax) was heard. However, no specific arguments or contentions from the revenue's side are recorded in the judgment.

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
1 WP(C) No.20204 of 2023 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 21ST DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 WP(C) NO. 20204 OF 2023 PETITIONER/S: THEKKINIAN POULOSE VARKEY T.P. CONSTRUCTION AVM COMPLEX, CHIRANGARA, KORATTY SOUTH P.O. THRISSUR, KERALA, PIN - 680308 BY ADVS. ANIL D. NAIR TELMA RAJU AADITYA NAIR ANJANA A. RESPONDENT/S: 1 ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 2(1), THRISSUR, PIN - 680001 2 COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS APPEAL CENTRE NEW DELHI, PIN - 110001 3 COMMISSIONER OF INCOME TAX DCIT CIRCLE 1(1), THRISSUR, PIN - 680001 BY ADV JOSE JOSEPH, SC, INCOME TAX DEPARTMENT, KERALA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 WP(C) No.20204 of 2023 C.S DIAS,J. --------------------------- WP(C) No.20204 of 2023 ----------------------------- Dated this the 21st day of June, 2023 .

JUDGMENT The writ petition is filed to direct the second respondent to consider and dispose of Exts P3 and P5 appeals along with Exts P4 and P6 stay petitions.

2.

The petitioner’s case is that, aggrieved by Exts P1 assessment and Ext P2 penalty order, the petitioner has preferred Exts P3 and P5 appeals before the second respondent on 18.12.2019 and 29.4.2020, respectively. Subsequently, the petitioner has filed Exts P4 and P6 stay petitions on 1.1.2020 and 9.4.2020, respectively, in Exts P3 and P5 appeals. The second respondent has not considered the stay petitions. Now the third respondent has issued Ext P7 notice, threatening to enforce Exts P1 and P2. If the respondents proceed with Ext P7 notice, it would cause severe prejudice and hardship to the petitioner. Hence, the writ petition.

3.

Heard; Sri.Anil D Nair, the learned counsel appearing for the petitioner and Sri.Jose Joseph, the learned counsel appearing for the respondents.

4.

Having considered the pleadings and materials on record and taking note of the fact that Exts P4 and P6 stay petitions are pending consideration before the second respondent, I deem it appropriate to order the writ petition as follows: (i) The second respondent is directed to consider and dispose of Exts P4 and P6 stay petitions, 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 the judgment, after affording the petitioner an opportunity of being heard.

(ii) Needless to mention that if the second respondent proposes to pass a conditional order of stay, he shall state reason for the same. (iii) Until such time orders are passed on Exts P4 and P6 stay petitions, all further proceedings pursuant to Exts P1, P2 and P7 shall stand deferred. sks/21.6.2023 C.S.DIAS, JUDGE

Appendix — schedule of exhibits
APPENDIX OF WP(C) 20204/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER U/S 143(3) OF THE ACT, ALONG WITH DEMAND NOTICE DATED 26/11/2019 ISSUED BY THE 1ST RESPONDENT FOR ASSESSMENT YEAR 2017-18 Exhibit P2 TRUE COPY OF THE PENALTY ORDER U/S 271(1) (C) OF THE ACT, ALONG WITH DEMAND NOTICE DATED 20/02/2020 ISSUED BY THE 1ST RESPONDENT FOR ASSESSMENT YEAR 2015-16 Exhibit P3 TRUE COPY OF THE APPEAL IN FORM 35 FOR A.Y. 2017-18 DATED 18.12.2019 FILED BEFORE THE 2ND RESPONDENT. Exhibit P4 TRUE COPY OF THE PETITION FOR STAY FILED BEFORE THE 2ND RESPONDENT DATED 1.1.2020. Exhibit P5 TRUE COPY OF THE APPEAL IN FORM 35 FOR A.Y. 2015-16 DATED 29.04.2020 FILED BEFORE THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE PETITION FOR STAY FILED BEFORE THE 2ND RESPONDENT DATED 9.4.2020 Exhibit P7 TRUE COPY OF THE NOTICE LETTER DATED 09/06/2023 BY THE 3RD RESPONDENT.

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