KUTHUBUDHEEN vs. THE INCOME TAX OFFICER,

Against the assessment order, Ext.P1 dated 28.11.2019, pertaining to the assessment year 2017-18, petitioner preferred an appeal and stay application Exts.P2 and P3. The learned counsel appearing on behalf of the petitioner submits that the assessment order was challenged on various grounds taken in the appeal but fact of the matter is that though the petitioner had sought the indulgence of the Commissioner of Income Tax for adjournment, despite that in the absence of the petitioner, the stay application has been disposed of subject to the WP(C).No.10400 OF 2020(Y) 3 condition as noticed above. In support of his submission, he relies upon the Division Bench judgment of this Court in W.A No.1529 of 2019, whereby it is held that the circular dated 31.07.2017 issued by Income Tax Department do not have any binding effect and there is no such provision in the statute.

Issue notice before admission. Sri.Christopher Abraham accepts notice on behalf of the Income Tax. He submits that the petitioner did not appear before the authority dealing with the same and no other option but to dispose of the same, by relying upon the circular, referred above.

I have heard the learned counsel for the parties and appraised the paper book. The facts as noticed above are not in dispute. Against the assessment order, the appeal and stay application have been referred.

The Division Bench of this Court after having noticed the circular, ibid, remanded the matter to the Income Tax Authority to consider and decide the stay application, in accordance with law without calling upon the assessee to comply with the condition of deposit of 20% of WP(C).No.10400 OF 2020(Y) 4 demanded amount. The direction in the aforementioned judgment is still in force and has not been set aside so far. It is intriguing that either the Assessing Authorities while exercising the powers under 226 of Constitution of India or the Appellate authority, the Commissioner of Income Tax are not adhering to the directions passed by the division Bench of this Court and have been passing the orders of such nature compelling the assessee to approach this Court. I request Sri.Christopher Abraham to sensitize the officers regarding the directions contained in the Division Bench that the assessees are not unnecessarily compelled to approach this Court without any fault. This Court in Sanguine of the fact that the aforementioned directions henceforth onwards would be complied with by the authorities in letter and spirit. The order impugned leaves no manner of doubt that the stay application has been dismissed in the absence of the assessee or representative with the imposition of condition. In view of what has been noticed, the impugned order Ext.P4 dated 20.03.2020 is not sustainable and hereby set aside. The writ petition stands allowed. The matter is remitted to the Commissioner