AHEMMED KUNJU SHANAVAS vs. THE INCOME TAX OFFICER

WP(C)/5682/2020HC KeralaKLHC01015095202027 February 2020Author: HONOURABLE MR.JUSTICE S.V.BHATTI4 pages

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What did the High Court hold?

The High Court of Kerala, per Justice S.V. Bhatti, found that a case was made out for issuing necessary directions to the second respondent (The Commissioner of Income Tax (Appeals)) to dispose of the stay petition (Ext.P3). The Court was satisfied that, given the limited prayer and the grounds raised, the writ petition could be disposed of by issuing specific directions. The appellate authority was directed to consider and dispose of the stay application as early as possible, preferably within two months from the date of receipt of a copy of the judgment. Additionally, the respondents were directed not to take coercive steps or recover the amount determined in the orders under appeal for ten weeks from the date of the order.

What were the facts?

The petitioner, Ahemmmed Kunju Shanavas, filed an appeal (Ext.P2) against an assessment order (Ext.P1) under the Income Tax Act. Along with the appeal, the petitioner filed a stay petition (Ext.P3) seeking a stay on the recovery of the disputed tax amount. The petitioner contended that the mere pendency of an appeal does not automatically grant a stay. Delay in deciding the stay petition could lead to recovery proceedings by the assessing officer, rendering the statutory appeal ineffective. The petitioner approached the High Court of Kerala seeking a direction to the appellate authority to expeditiously consider and dispose of the stay petition.

What were the issues?

1. Whether the High Court should issue a direction to the appellate authority to expeditiously consider and dispose of the stay petition filed by the petitioner pending appeal? (Question of procedure/mixed law and fact) Assessee's Contentions: - The mere filing of an appeal or its pendency does not amount to a stay granted by the appellate authority. - Delay in disposing of the stay petition could result in coercive recovery steps by the assessing officer, making the statutory appeal academic or ineffective. - The law provides for the expeditious passing of orders on stay petitions to protect the interest of the appellant pending appeal. Revenue's Contentions: - The judgment records no specific contentions from the revenue regarding the stay petition or the High Court's jurisdiction to issue directions.

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Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941 WP(C).No.5682 OF 2020(I) PETITIONER/S: AHEMMED KUNJU SHANAVAS CHAVADIPARAMBU, CHATHANAD WARD, ALAPPUZHA-688001 BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 THE INCOME TAX OFFICER WARD-4, INCOME TAX OFFICE, ARATTUKULANKARA COMPLEX, A.N.PURAM, ALAPPUZHA-688011 2 THE COMMISSIONER OF INCOME TAX(APPEALS) KOTTAYAM-686001 SC JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.5682 OF 2020(I) 2 JUDGMENT Dated this the 27th day of February 2020 The petitioner filed appeal in Ext.P2 aggrieved by the order of assessment in Ext.P1 made under Income Tax Act. The petitioner has filed the appeal with Ext.P3 stay petition. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Ext.P3 expeditiously. 2. The case of petitioner is that either the mere filing of appeal or pendency of appeal does not amount to granting stay by the appellate authority. The delay in considering and disposing of Ext.P3 results in the assessing officer taking steps for recovering the tax amount which is under challenge in Ext.P2. The assessing officer, if is successful in his effort the statutory appeal would become either academic or ineffective. It is further contended by the petitioner that in the manner the law provides for protecting the interest of appellant pending appeal, the order on stay petition WP(C).No.5682 OF 2020(I) 3 is passed expeditiously. Hence the writ petition. 3. Perused Exts.P1, P2, and P3. Prima facie I am satisfied that a case is made out for issuing necessary directions to 2nd respondent to dispose of stay petition in Ext.P3. Having regard to the limited prayer and the grounds referred to above, this Court is satisfied that the writ petition can be

disposed of by this order: (a) The appellate authority/2nd respondent considers and disposes of Ext.P3 application as early as possible, preferably within two months from the date of receipt of copy of this judgment. (b) The respondents are directed not to take coercive steps or recover the amount determined in the orders under appeal for ten weeks from today. S.V.BHATTI JUDGE JS

WP(C).No.5682 OF 2020(I) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT -2017-18 EXHIBIT P3 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

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