THE MULLURKKARA SERVICE CO-OPERATIVE BANK LTD. vs. THE ADDITIONAL/JOINT/DEPUTY/ASST. COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER

WP(C)/39360/2022HC KeralaKLHC01085271202207 December 2022Author: HONOURABLE MR. JUSTICE GOPINATH P.4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the writ petition by directing the 2nd respondent, the National Faceless Appeal Centre, to consider and pass orders on the petitioner's application for condonation of delay (Ext.P3). If the delay is condoned, the 2nd respondent is further directed to pass orders on the stay application (Ext.P4) after providing an opportunity of hearing to the petitioner. The 2nd respondent is to endeavor to pass these orders within two months of receiving a certified copy of the judgment. Crucially, until orders are passed on Exts.P3 and P4, any recovery proceedings pursuant to the assessment order (Ext.P1) shall be kept in abeyance. The Court clarified that if the delay is not condoned, there will be no requirement to pass a separate order on the stay application, and recovery proceedings can proceed. It was also clarified that the Appellate Authority would only need to pass orders on the merits of the appeal if the delay is condoned.

What were the facts?

The petitioner, The Mullurkkara Service Co-operative Bank Ltd., filed an appeal (Ext.P2) challenging an order of assessment (Ext.P1) under the Income Tax Act, 1961. Along with the appeal, the petitioner filed an application for condonation of delay (Ext.P3) and a stay petition (Ext.P4). The petitioner approached the High Court apprehending recovery proceedings while the appeal was pending adjudication. The respondents are various authorities of the Income Tax Department, including the National Faceless Appeal Centre.

What were the issues?

1. Whether the 2nd respondent (National Faceless Appeal Centre) should consider and pass orders on the petitioner's application for condonation of delay (Ext.P3) and, if delay is condoned, on the stay application (Ext.P4), after affording an opportunity of hearing to the petitioner? The Assessee (Petitioner) contended that they have filed an appeal along with applications for condonation of delay and stay, and they are apprehending recovery proceedings. The Revenue (Respondents) did not record any specific contentions in the judgment regarding the procedure for considering these applications. The Court's decision hinges on directing the respondent authority to process the pending applications.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNE AY, THE 7TH DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944 WP(C) NO. 39360 OF 2022 PETITIONER: THE MULLURKKARA SERVICE CO-OPERATIVE BANK LTD. NO. F1086, THALAPPILLY PO, MULLURKARA, THRISSUR , REPRESENTED BY ITS SECRETARY, MIMITHA V.R. , PIN - 680583 BY ADVS. HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENTS: 1 THE ADDITIONAL/JOINT/DEPUTY/ASST. COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER NATIONAL E-ASSESSMENT CENTRE, DELHI , PIN - 110001 2 NATIONAL FACELESS APPEAL CENTRE NATIONAL FACELESS APPEAL CENTRE, DELHI , REPRESENTED BY THE COMMISSIONER OF INCOME TAX (APPEALS)., PIN - 110001 3 INCOME TAX OFFICER AAYAKAR BHAVAN, SAKTHANTHAMPURAN NAGAR, MUNICIPAL OFFICE ROAD, THRISSUR , PIN - 680001 OTHER PRESENT: ADV. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Dated this the 07th day of December, 2022 The petitioner preferred Ext.P2 appeal challenging Ext.P1 order of assessment under the provisions of Income Tax Act, 1961 along with Ext.P3 application for condonation of delay and Ext.P4 stay petition. The petitioner has approached this court apprehending recovery proceedings pending adjudication of the appeal.

Having regard to the facts and circumstances of the case and upon hearing the learned Standing Counsel for the respondents, this writ petition will stand disposed of directing the 2nd respondent to consider and pass orders on Ext.P3 application filed by the petitioner for condonation of delay and if delay is condoned to pass orders on Ext.P4 stay application after affording an opportunity of hearing to the petitioner. The 2nd respondent shall endeavour to pass orders on Exts.P3 and P4 applications within a period of two months from the date of receipt of a certified copy of this judgment. Till such time orders are passed on Exts.P3 and P4 any recovery pursuant to Ext.P1 shall be kept in abeyance.

I make it clear that in the event of the delay not being condoned, there will be no requirement of passing any separate order on the stay application and in such event there will be no interdiction in proceeding with the recovery of amounts under Ext.P1. Further since the appeal has been filed along with an application to condone the delay, it is clarified that the Appellate Authority needs to pass orders on merits on the appeal, only if it decides to condone the delay in filing the appeal. The writ petition is disposed of as above GOPINATH P. JUDGE RMV

Appendix — schedule of exhibits

APPENDIX OF WP(C) 39360/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2020-21 DTD. 19-09-2022 Exhibit P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 16-11-2022 Exhibit P3 COPY OF DELAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 16-11-2022 Exhibit P4 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 16-11-2022 RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE

Recent GST High Court judgments

Search GST case law →