M.S.THANKACHAN vs. THE COMMISSIONER OF INCOME TAX (APPEALS)

WP(C)/4646/2020HC KeralaKLHC01012573202009 March 2020Author: HONOURABLE MR. JUSTICE AMIT RAWAL6 pages

AI SummaryRemanded

What did the High Court hold?

The High Court held that while the petitioner had the option to press the interim stay applications before the Commissioner of Income Tax (Appeals), the writ petition under Article 226 was invoked due to the pending appeals and the apprehension of coercive measures. The Court directed that if the petitioner moves the application for interim stay within two weeks from the date of the order, the Commissioner of Income Tax (Appeals) shall decide the application for interim stay within 30 days thereafter. The Court further directed that any coercive measures contemplated by the income tax authorities in the meantime shall be kept in abeyance until the adjudication of the interim application, and not beyond. The writ petition was disposed of in view of these directions.

What were the facts?

The petitioner, M.S. Thankachan, an income tax assessee, is aggrieved by assessment orders for assessment years 2012-13, 2013-14, 2014-15, 2015-16, and 2016-17. These orders were passed between March 2017 and December 2018. The petitioner filed five appeals and stay applications before the Commissioner of Income Tax (Appeals). The appeals and stay applications had not been heard. The petitioner invoked the jurisdiction of the High Court under Article 226 of the Constitution of India, citing the absence of consideration of stay applications and the threat of coercive measures. The petitioner had already remitted Rs. 57,68,020/- against a demand of Rs. 5,00,00,000/-.

What were the issues?

1. Whether the High Court should entertain a writ petition under Article 226 of the Constitution of India when appeals and stay applications are pending before the Commissioner of Income Tax (Appeals) and coercive measures are apprehended? Assessee's contention: The petitioner argued that coercive measures were imminent due to the non-consideration of stay applications, necessitating the invocation of the High Court's writ jurisdiction. The petitioner also highlighted that substantial payment had already been made. Revenue's contention: The respondent submitted that the appeals were pending and had not been taken up for hearing, which was the reason for the interim applications not being considered. The revenue did not express aversion to a direction fixing a time limit for deciding the stay applications.

Which sections of the Income-tax Act were involved?

Article 226

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 AMIT RAWAL MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941 WP(C).No.4646 OF 2020(E) PETITIONER: M.S.THANKACHAN, AGED 60 YEARS, S/O. SEBASTIAN, MATHALIKUNNEL HOUSE, KOOMBARA BAZAR, KOODARANHI, KOZHIKODE DISTRICT,PIN-673 604 BY ADV. SRI.O.D.SIVADAS RESPONDENTS: 1 THE COMMISSIONER OF INCOME TAX (APPEALS), AYAKAR BHAVAN, KOZHIKODE-673 001. 2 THE INCOME TAX OFFICER, WARD 2 (3), KOZHIKODE,PIN-673 001. 3 THE INCOME TAX OFFICER, WARD 2 (1), KOZHIKODE,PIN-673 001. 4 THE RECOVERY OFFICER, INCOME TAX DEPARTMENT, KOZHIKODE,PIN-673 001. OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.4646 OF 2020 -2-

JUDGMENT Petitioner, an assessee of income tax being aggrieved by the assessment orders Exts.P1 to P5 pertaining to assessment years 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17 passed in March, November & December, 2017 and December, 2018 preferred five appeals Exts.P6 to P10 and stay application Exts.P12 to P15 for five assessment years, Exts.P12 and P13 are of 19.12.2017 and 10.01.2017 whereas Ext.P15 dated 31.01.2019 for assessment year 2016-17. They had not been heard so far.

Learned counsel for the petitioner submits that in the absence of consideration of any application for stay, the coercive measures is writ large and therefore, the jurisdiction of this Court under Article 226 of the Constitution of India has been invoked.

WP(C).No.4646 OF 2020 -3-

The learned counsel for the respondent submits that the appeals are pending and not taken up and it is for that reason, the interim applications were not taken up. However, this writ petition is bereft of any coercive measures, but did not show any aversion to issue any direction fixing any time limit for deciding the stay applications.

Per contra, learned counsel for the petitioner submits that during the pendency of the appeal, petitioner has already remitted Rs.57,68,020/- against the demand of Rs.5,00,00,000/- and the learned counsel also moved an interim application before the appellate authority.

Having heard the learned counsel for the parties and appraised the paper books, I am of the view that the appeals of 2017, pending for 2013, pertaining to four assessment years have not so far

WP(C).No.4646 OF 2020 -4- been taken up for hearing. Be that as if may, instead of petitioner availing the remedy under Article 226 of the Constitution of India, in my view, ought to have also pressed the interim stay in the pending appeals before the Commissioner of Income Tax (Appeals). In case the petitioner moves the application for interim stay within the period of two weeks from today, the Commissioner of Income Tax (Appeals) shall decide the application for interim stay within a period of 30 days thereafter. In case the income tax authorities in the meantime contemplate to initiate the coercive measures, the order shall be kept in abeyance till the adjudication of the interim application only and not beyond. In view of the aforementioned directions this writ petition stands disposed of. AMIT RAWAL vv JUDGE

WP(C).No.4646 OF 2020 -5-

Appendix — schedule of exhibits

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2012-13 ISSUED BY THE 2ND RESPONDENT DATED 27.11.2017 EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2013-14 ISSUED BY THE 2ND RESPONDENT DATED 8.11.2017 EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2014-15 ISSUED BY THE 2ND RESPONDENT DATED 9.12.2017 EXHIBIT P4 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2015-16 ISSUED BY THE 2ND RESPONDENT DATED 10.03.2017 EXHIBIT P5 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2016-17 ISSUED BY THE 2ND RESPONDENT DATED 28.12.2018 EXHIBIT P6 TRUE COPY OF THE STATUTORY APPEAL PREFERRED AGAINST EXT.P1 ASSESSMENT ORDER FOR THE PERIOD 2012-13 BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.12.2017 EXHIBIT P7 TRUE COPY OF THE STATUTORY APPEAL PREFERRED AGAINST EXT.P2 ASSESSMENT ORDER FOR THE PERIOD 2013-14 BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.12.2017 EXHIBIT P8 TRUE COPY OF THE STATUTORY APPEAL PREFERRED AGAINST EXT.P3 ASSESSMENT ORDER FOR THE PERIOD 2014-15 BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.12.2017 EXHIBIT P9 TRUE COPY OF THE STATUTORY APPEAL PREFERRED AGAINST EXT.P4 ASSESSMENT ORDER FOR THE PERIOD 2015-16 BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 08.04.2017 WP(C).No.4646 OF 2020 -6- EXHIBIT P10 TRUE COPY OF THE STATUTORY APPEAL PREFERRED AGAINST EXT.P5 ASSESSMENT ORDER FOR THE PERIOD 2016-17 BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.01.2019 EXHIBIT P11 TRUE COPY OF THE ORDER DATED 4.11.2019 ISSUED BY THE STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY TO THE PETITIONER EXHIBIT P12 TRUE COPY OF THE STAY APPLICATION DATED 19.12.2017 SUBMITTED BY THE PETITIONER BEFORE THE ASSESSING AUTHORITY FOR THE YEAR 2012-13 AND 2013-14 EXHIBIT P13 TRUE COPY OF THE STAY APPLICATION DATED 10.01.2017 SUBMITTED BY THE PETITIONER BEFORE THE ASSESSING AUTHORITY FOR THE YEAR 2014-15 EXHIBIT P14 TRUE COPY OF THE STAY APPLICATION DATED 12.04.2017 SUBMITTED BY THE PETITIONER BEFORE THE ASSESSING AUTHORITY FOR THE YEAR 2015-16 EXHIBIT P15 TRUE COPY OF THE STAY APPLICATION DATED 31.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE ASSESSING AUTHORITY FOR THE YEAR 2016-17 //TRUE COPY// PA TO JUDGE

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