MARAKADAVATH SULAIMAN vs. THE ADDITIONAL/JOINT/DEPUTY/ASST. COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER

WP(C)/34833/2022HC KeralaKLHC01074423202209 November 2022Author: HONOURABLE MR. JUSTICE GOPINATH P.3 pages

AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the writ petition by directing the 2nd respondent 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 orders on both applications 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 need to pass an order on the stay application, and recovery proceedings can proceed. The principle is that procedural applications for condonation of delay and stay must be considered before coercive recovery measures are initiated, subject to the outcome of the delay condonation.

What were the facts?

The petitioner, Marakadavath Sulaiman, filed an appeal (Ext.P2) against an order of assessment (Ext.P1) under the Income Tax Act, 1961. He also filed an application for condonation of delay (Ext.P3) and a stay petition (Ext.P4) along with the appeal. The petitioner approached the High Court of Kerala apprehending recovery proceedings while his appeal was pending adjudication. The respondents are various income tax authorities, 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)? (Question of procedure and mixed law and fact, concerning the Income Tax Act, 1961). Assessee's Contention: The petitioner seeks a direction for the authorities to consider his delay condonation and stay applications. The petitioner relies on the general principle of natural justice and the need for adjudication of appeals before recovery. Revenue's Contention: The learned Standing Counsel for the respondents appeared. No specific arguments were recorded for the revenue regarding the merits of the delay condonation or stay applications, but they were present for the hearing.

Which sections of the Income-tax Act were involved?

Income Tax Act, 1961

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 GOPINATH P. WEDNESDAY, THE 9TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 WP(C) NO. 34833 OF 2022 PETITIONER: MARAKADAVATH SULAIMAN AGED 51 YEARS MARAKADAVATH HOUSE, KANJIRAPPUZHA, MANNNARKKAD, PALAKKAD, PIN - 678591 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 WARD 1 & TPS, AAYAKAR BHAVAN, ENGLISH CHURCH ROAD, PALAKKAD, PIN - 678014 OTHER PRESENT: ADV. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.34833/2022 -2-

J U D G M E N T 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. The writ petition is disposed of as above. GOPINATH P. JUDGE AMG

W.P (C) No.34833/2022 -3-

Appendix — schedule of exhibits

APPENDIX OF WP(C) 34833/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 DTD,. 10-03-2022 Exhibit P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 28-09-2022 Exhibit P3 COPY OF DELAY PETITION FILED BY THEPETITIONER BEFORE THE 2ND RESPONDENT DTD. 26-09-2022 Exhibit P4 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 19-10-2022

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