FOSCHIA RESORTS PVT. LTD. vs. THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX

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WP(C)/26731/2021HC KeralaKLHC01067164202126 November 2021Author: HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS4 pages
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What did the High Court hold?

The High Court directed the second respondent, the Commissioner of Income Tax (Appeals), to consider and pass appropriate orders on the petitioner's stay petition (Ext.P3) within a period of three months from the date of receipt of a copy of the judgment. An opportunity of hearing was to be afforded to the petitioner. Crucially, the Court ordered that all coercive proceedings against the petitioner shall be kept in abeyance until a decision is taken on the stay petition. The writ petition was disposed of with these directions. No specific finding was made on the merits of the assessment or the appeal itself, as the focus was on the procedural aspect of the stay petition.

What were the facts?

The petitioner, Foschia Resorts Pvt. Ltd., is aggrieved by an assessment order for the assessment year 2018-19. The petitioner has filed an appeal before the second respondent, the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, New Delhi, and a petition for stay of proceedings. The petitioner apprehends coercive proceedings before the stay petition is considered. This writ petition has been filed seeking a direction to the respondents. The assessment order is marked as Ext.P1, the appeal as Ext.P2, and the stay petition as Ext.P3.

What were the issues?

1. Whether the petitioner is entitled to a direction for the consideration of their stay petition before coercive proceedings are initiated. (Question of law and fact) The petitioner's contention is that they have filed an appeal and a stay petition and apprehend coercive action before the stay petition is decided. They seek a direction for the expeditious disposal of the stay petition and a stay on coercive proceedings until then. The revenue's contention is not recorded in the judgment.

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
WP(C) NO. 26731 OF 2021 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 26TH DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 WP(C) NO. 26731 OF 2021 PETITIONER/S: FOSCHIA RESORTS PVT. LTD. X33/1710E,CHAKKARAPARAMBU, KANIAPILLY ROAD, VENNALA P.O, ERNAKULAM-682028, KERALA, PAN AACCF8257H, REPRESENTED BY ITS MANAGING DIRECTOR, MR.SHOJAN KOKKADAN RAPPAI. BY ADVS. JOSEPH MARKOSE (SR.) V.ABRAHAM MARKOS ABRAHAM JOSEPH MARKOS ISAAC THOMAS SHARAD JOSEPH KODANTHARA RESPONDENT/S: 1 THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX INCOME TAX OFFICER, NATIONAL E-ASSESSMENT CENTRE, NEW DELHI- 11001. 2 COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE, NEW DELHI-110001. 3 INCOME TAX OFFICER CORPORATE WARD 1(1) KOCHI-682018. SRI.JOSE JOSEPH,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26731 OF 2021 2 BECHU KURIAN THOMAS, J. =============================== W.P.(C)No.26731 of 2021 ----------------------------------------------------- Dated this the 26th day of November, 2021

JUDGMENT Aggrieved by Ext.P1 order of assessment relating to assessment year 2018-19, petitioner has preferred an appeal before the 2nd respondent, a copy of which is produced as Ext.P2. A petition for stay of proceedings pursuant to the assessment order has also been filed as Ext.P3. Petitioner apprehends coercive proceedings to be effected even before the petition for stay is considered. Hence this writ petition.

2.

Having considered the submissions of the counsel for the petitioner as well as the respondents, I am of the opinion that this writ petition itself can be disposed of with a direction.

3.

Accordingly, there will be a direction to the 2nd respondent to consider and pass appropriate orders on Ext.P3 stay petition, within a period of three months from the date of receipt of a coy of this judgment, after affording an opportunity of WP(C) NO. 26731 OF 2021 3 hearing to the petitioner. Till such a decision is taken, all coercive proceedings against the petitioner shall be kept in abeyance. The writ petition is disposed of accordingly. BECHU KURIAN THOMAS JUDGE jm/

WP(C) NO. 26731 OF 2021 4

Appendix — schedule of exhibits
APPENDIX OF WP(C) 26731/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 20.04.2021 PASSED BY THE 1ST RESPONDENT. Exhibit P2 TRUE COPY OF THE APPEAL DATED 17.05.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P3 TRUE COPY OF THE STAY PETITION DATED 14.05.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ALONG WITH EXT.P2 APPEAL. Exhibit P4 TRUE COPY OF THE NOTICE DATED 18.11.2021 ISSUED BY THE 3RD RESPONDENT.

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