RAYMOND ABRAHAM vs. THE CENTRAL BOARD OF DIRECT TAXES

WP(C)/25832/2022HC KeralaKLHC01054552202211 August 2022Author: HONOURABLE MR. JUSTICE GOPINATH P.3 pages

AI SummaryRemanded

What did the High Court hold?

The High Court of Kerala disposed of the writ petition by directing the 3rd respondent (Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi) to provide a link to enable the petitioner to upload a stay petition in relation to his appeal filed before the NFAC. This was to be done within ten days of receiving a certified copy of the judgment. Furthermore, if the petitioner filed a stay petition within two weeks of the link being provided, all recovery proceedings for the amount due under the assessment order (Ext.P2) were to be kept in abeyance until a decision was taken on the stay petition. The court did not decide the merits of the assessment or the stay petition itself.

What were the facts?

The petitioner, Raymond Abraham, filed an appeal (Ext.P3) before the National Faceless Appeal Centre (NFAC) challenging an assessment order (Ext.P2). He approached the High Court of Kerala because recovery proceedings were initiated while his appeal was pending. The department acknowledged the appeal was filed before the NFAC but noted that the stay petition was filed before the Commissioner of Income Tax (Appeals), who lacked the competence to decide it. The petitioner then requested a link to file a stay petition before the NFAC and for recovery proceedings to be stayed until a decision on the stay petition.

What were the issues?

1. Whether the Commissioner of Income Tax (Appeals) is competent to decide a stay petition when the appeal has been filed before the National Faceless Appeal Centre, under the Income Tax Act, 1961. Assessee's contention: The petitioner argued that recovery proceedings were being initiated prematurely while his appeal was pending before the NFAC. He sought a direction to provide a link to file a stay petition before the NFAC and to keep recovery proceedings in abeyance until a decision on the stay petition. Revenue's contention: The respondent department stated that the petitioner had filed the appeal before the NFAC, but the stay petition was filed before the Commissioner of Income Tax (Appeals), who was not competent to decide it.

AI-generated summary — verify with the full judgment below

Heard together (2 matters)

WP(C) NO. 25832 OF 2022

TC 34/16

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

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 11TH DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 WP(C) NO. 25832 OF 2022 PETITIONER: RAYMOND ABRAHAM AGED 57 YEARS, S/O ANTONY ABRAHAM TC 34/1652, HOLY BHAVAN, VALLAKADAVOO, TRIVANDRUM PIN - 695008 BY ADVS. K.P.PRADEEP HAREESH M.R. SANAND RAMAKRISHNAN T.T.BIJU T.THASMI M.J.ANOOPA SANU S MALAKEEL RESPONDENTS: 1 THE CENTRAL BOARD OF DIRECT TAXES DEPARTMENT OF REVENUE, MINISTRY OF FINANCE GOVERNMENT OF INDIA, NORTH BLOCK NEW DELHI-, REPRESENTED BY ITS CHAIRMAN , PIN - 11000 2 ADDITIONAL COMMISSIONER OF INCOME TAX NATIONAL E-ASSESSMENT CENTRE, DELHI ROOM NO. 401, 2ND FLOOR, E-RAMP, JAWAHARLAL NEHRU STADIUM, DELHI- , PIN - 110003 3 COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS APPEAL CENTRE (NFAC), DELHI, ROOM NO. 401, 2ND FLOOR, E-RAMP, JAWAHARLAL NEHRU STADIUM, DELHI , PIN - 110003 4 COMMISSIONER OF INCOME TAX (APPEALS) THIRUVANANTHAPURAM, AAYAKAR BHAVAN INCOME TAX OFFICE, KOWADIAR THIRUVANANTHAPURAM - , PIN - 695003 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.25832/2022 -2-

J U D G M E N T Petitioner filed Ext.P3 appeal challenging Ext.P2 order of assessment before the National Faceless Appeal Centre. The petitioner has approached this Court being aggrieved by the fact that, pending consideration of the appeal filed by the petitioner, proceedings are being initiated to recover the amount due under Ext.P2 order of assessment.

The learned counsel appearing for the respondent department states that the petitioner has filed the appeal before the National Faceless Appeal Centre. However, the petition seeking stay of proceedings has been filed before the Commissioner of Income Tax (Appeals), who is not competent to decide the stay petition as the appeal is filed before the National Faceless Appeal Centre.

Faced with this situation, the learned counsel for the petitioner says that if a link is provided to file a stay petition before the National Faceless Appeal Centre, the petitioner will file such stay petition and a direction may be issued to keep recovery proceedings in abeyance till a decision is taken on the stay petition to be filed by the petitioner.

Having regard to the facts and circumstances of the case, the writ petition is disposed of directing the 3rd respondent to provide a link to enable the petitioner to upload a stay petition in Ext.P3 appeal filed by the petitioner. This shall be done within a period of ten days from the date of receipt of a certified copy of this judgment. If the petitioner files a stay petition within two weeks from the date of which a link is provided to the petitioner, further proceedings to recover any amount due under Ext.P2 shall be kept in abeyance till a decision is taken on the stay petition to be filed by the petitioner. The writ petition is disposed of as above. GOPINATH P. JUDGE AMG

W.P (C) No.25832/2022 -3-

Appendix — schedule of exhibits

APPENDIX OF WP(C) 25832/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RETURN OF INCOME DATED 08-03-2022 FOR THE ASSESSMENT YEAR 2017-18 IN PAN NO.AQCPA2952KFILED BY THE PETITIONER Exhibit P2 TRUE COPY OF THE ASSESSMENT ORDER NO ITBA/AST/S/147/2021-22/1041126338(1) DATED 21-03-2022 ISSUED FOR THE YEAR 2017-18 BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P3 TRUE COPY OF THE APPEAL DATED 14-04-2022 FILED FOR THE YEAR 2017-18 BEFORE THE 3RD RESPONDENT BY THE PETITIONER Exhibit P4 TRUE COPY OF THE STAY APPLICATION FILED ON 04-08-2022 BEFORE THE 4THRESPONDENT IN EXT P3 APPEAL

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