MOLLEY JAYAPRAKASH vs. THE INCOME TAX OFFICER

WP(C)/314/2023HC KeralaKLHC01000780202306 January 2023Author: HONOURABLE MR. JUSTICE GOPINATH P.4 pages

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What did the High Court hold?

The High Court disposed of the Writ Petition by directing that if the petitioner files a stay petition in her pending appeal before the National Faceless Appeal Centre within two weeks from the date of the order, any demand pursuant to the penalty order (Ext. P4) shall be kept in abeyance until orders are passed on such stay petition. The Court also provided a procedural recourse: if the petitioner faces difficulty in uploading the stay petition, she can approach the jurisdictional assessing officer, who will ensure its forwarding to the National Faceless Appeal Centre. The Court did not decide on the merits of the penalty itself, but provided a procedural mechanism to address the apprehension of recovery.

What were the facts?

The petitioner, Molley Jayaprakash, is challenging an order of penalty (Ext. P4) for the assessment year 2017-2018. The petitioner filed an appeal (Ext. P5) before the National Faceless Appeal Centre, which is currently pending. No stay petition has been filed by the petitioner in this appeal. The petitioner apprehends that recovery proceedings will be initiated for the penalty amount while the appeal is pending. The respondent department indicated that if a stay petition is filed, recovery steps would be held in abeyance until an order is passed on the stay petition.

What were the issues?

1. Whether the petitioner is entitled to a stay of recovery proceedings pending the disposal of her appeal before the National Faceless Appeal Centre, considering she has not yet filed a stay petition. Assessee's Contention: The petitioner seeks to prevent recovery of the penalty amount while her appeal is pending and apprehends immediate recovery steps. The petitioner's counsel implicitly argues for a direction to keep recovery in abeyance. Revenue's Contention: The learned counsel for the respondent department stated that if the petitioner prefers a stay petition, any steps for recovery of amounts due under the penalty order shall be kept in abeyance until orders are passed on the stay petition. The department did not argue against the principle of staying recovery pending appeal, but highlighted the procedural requirement of filing a stay petition.

Which sections of the Income-tax Act were involved?

None explicitly mentioned in the provided text, other than a general reference to the 'Income Tax Act, 1961'.

AI-generated summary — verify with the full judgment below

Heard together (2 matters)

WP(C) NO. 314 OF 2023

TC 3/74

Read from the judgment's own cause title. This page is filed under one of them.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944 WP(C) NO. 314 OF 2023 PETITIONER: MOLLEY JAYAPRAKASH AGED 63 YEARS TC 3/746, HOUSE NO.1, KIRAN GARDEN KAIRALI NAGAR KD ROAD, MUTTADA P.O TRIVANDRUM, KERALA, PIN - 695025 BY ADVS. ANIL D. NAIR TELMA RAJU EDATHARA VINEETA KRISHNAN P.K.BIJU ANJANA A. RESPONDENTS: 1 THE INCOME TAX OFFICER OFFICE OF THE INCOME TAX OFFICER WARD -1 (2), THIRUVANANTHAPURAM, PIN - 695003 2 ADDITIONAL/JOINT/DEPUTY /ASSISTANT COMMISSIONER OF INCOME TAX INCOME TAX OFFICER, NATIONAL FACELESS ASSESSMENT CENTRE NEW DELHI, PIN - 110001 3 COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS APPEAL CENTRE, NEW DELHI, PIN - 110001 OTHER PRESENT: ADV. CHRISTOPHER ABRAHAM (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

..2.. JUDGMENT Dated this the 6th day of January, 2023 The petitioner suffered Ext. P4 order of penalty under the provisions of the Income Tax Act, 1961 for the assessment year 2017 – 2018. The petitioner had preferred Ext.P5 appeal before the National Faceless Appeal Centre and the said appeal is pending. The petitioner has however not filed any stay petition in the appeal. The petitioner apprehends that the recovery steps will be taken to recover amounts due under Ext.P4 order of penalty pending consideration of the appeal.

The learned counsel appearing for the respondent department points out that the petitioner has not preferred any stay petition and if the petitioner prefers a stay petition, any steps for recovery of amounts due under Ext.P4 order of penalty shall be kept in abeyance, till orders are passed on the stay petition.

Having regard to the submissions made, this Writ Petition will stand disposed of directing that if the petitioner files ..3.. a stay petition in the pending appeal (Ext.P5) before the National Faceless Appeal Centre, any demand pursuant to Ext.P4 order imposing penalty shall be kept in abeyance, till orders are passed on such stay petition. This benefit shall be available only if the stay petition is filed within a period of two weeks from today. If the petitioner faces any difficulty in uploading a stay petition in the pending appeal, it will be open to the petitioner to approach the juri ictional assessing officer, who will ensure that the stay petition is forwarded to the National Faceless Appeal Centre for consideration. The Writ Petition is disposed of as above. GOPINATH P. JUDGE RMV ..4..

Appendix — schedule of exhibits

APPENDIX OF WP(C) 314/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 26.12.2019 ISSUED BY THE 1ST RESPONDENT. Exhibit P2 TRUE COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT AGAINST THE ASSESSMENT ORDER. Exhibit P3 TRUE COPY OF CHALAN DATED 19.02.2020 EVIDENCING PAYMENT OF TAX Exhibit P4 TRUE COPY OF THE PENALTY ORDER DATED 16.03.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P5 TRUE COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT AGAINST PENALTY ORDER DATED 16.3.2022. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE

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