LATHEEF KUNJU vs. THE INCOME TAX OFFICER WARD -11

WP(C)/16218/2020HC KeralaKLHC01040005202007 August 2020Author: HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the writ petition with specific directions. Firstly, the 2nd respondent (Commissioner of Income Tax (Appeals)) was directed to consider and pass reasoned orders on the petitioner's stay petition (Ext.P3) within a period of four months from the date of receipt of the judgment, after affording a hearing to the petitioner. Secondly, recovery steps for the amounts confirmed by the assessment order (Ext.P1) were ordered to be kept in abeyance until such time as the 2nd respondent passes orders on the stay petition and communicates the same to the petitioner. The petitioner was directed to furnish copies of the writ petition and the judgment to the 2nd respondent for further action. The court did not decide on the merits of the assessment order or the stay petition itself, but rather on the procedural aspect of keeping recovery in abeyance pending the appellate authority's decision on the stay.

What were the facts?

The petitioner, Latheef Kunju, is challenging an assessment order (Ext.P1) under the Income Tax Act. He has filed an appeal (Ext.P2) along with a stay petition (Ext.P3) before the Commissioner of Income Tax (Appeals), the 2nd respondent. The petitioner contends that recovery steps are being initiated against him for the amounts confirmed by the assessment order, even before his stay petition is considered. The writ petition has been filed before the High Court of Kerala seeking directions regarding the pending appeal and stay petition.

What were the issues?

1. Whether the recovery steps for the amounts confirmed by the assessment order can be initiated before the disposal of the stay petition filed by the assessee? (Question of mixed law and fact, concerning principles of natural justice and procedural fairness under the Income Tax Act). Assessee's Contention: The petitioner argues that recovery proceedings are being pursued prematurely, prior to the adjudication of his stay petition by the appellate authority. He relies on the principle that a taxpayer should not be subjected to recovery actions while an appeal and a request for stay are pending. Revenue's Contention: The judgment does not record any specific arguments made by the revenue regarding the premature recovery steps or the merits of the stay petition. The revenue was represented by counsel.

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 A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942 WP(C).No.16218 OF 2020 PETITIONER: LATHEEF KUNJU, S/O.ISMAIL KUNJU CHEMATHARAYIL HOUSE, THODIYOOR NORTH P.O KARUNAGAPALLY, KOLLAM DISTRICT KERALA, PIN-690 523 BY ADV. SRI.BOBBY JOHN RESPONDENTS: 1. 2. 3. 4. THE INCOME TAX OFFICER WARD -11 ALAPPUZHA,ARATTUKULANGARA COMPLEX ADJACENT TO ALAPPUZHA MEDICAL COLLEGE A.N.PURAM, ALAPPUZHA, KERALA, PIN-688011 THE COMMISSIONER OF INCOME TAX(APPEALS)-KOTTAYAM 1ST FLOOR, PUBLIC LIBRARY BUILDING KOTTAYAM, PIN-686001 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, KERALA CENTRAL REVENUE BUILDING I.S.PRESS ROAD ERNAKULAM PIN-682018 THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT FINANCE DEPARTMENT RAJPATH MARG CENTRAL SECRETARIAT NEW DELHI PIN-110001 BY ADV.SRI.P.VIJAYAKUMAR, ASG OF INDIA BY ADV.SRI.JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.16218 of 2020 2

JUDGMENT

Against Ext.P1 assessment order under the Income Tax Act, the petitioner has preferred Ext.P2 appeal together with Ext.P3 stay petition before the 2nd respondent. It is the case of the petitioner that even prior to considering the stay petition, recovery steps are taken by the respondents against the petitioner for recovery of the amounts confirmed by Ext.P1 assessment order.

I have heard the learned counsel appearing for the petitioner and also the learned Standing counsel appearing for the respondents. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I dispose the writ petition with the following directions:

The 2nd respondent shall consider and pass reasoned orders on Ext.P3 stay petition within a period of four months from the date of receipt of a copy of this judgment, after hearing the petitioner.

Recovery steps for recovery of amounts confirmed against the petitioner by Ext.P1 assessment order shall be kept in abeyance till such time as orders are passed by the 2nd respondent as directed above and the order communicated to the petitioner.

The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 2nd respondent, for further action. A.K.JAYASANKARAN NAMBIAR

JUDGE mns/7.8.2020

Appendix — schedule of exhibits

APPENDIX PETITIONERS EXHIBITS EXHIBIT -P1 TRUE COPY OF THE ASSESSMENT ORDER FOR THE A.Y.2017-18, DATED 30.11.2019 PASSED BY THE 1ST RESPONDENT EXHIBIT P2- TRUE COPY OF THE FIRST APPEAL DATED 05.01.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P3- TRUE COPY OF THE STAY PETITION DATED 07.03.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE APPLICATION UNDER SECTION 220(6) OF THE ACT, DATED 07.03.2020 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT RESPONDENTS EXHIBITS:NIL //TRUE COPY// P.A TO JUDGE

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