SHAJAHAN THOONGAMPARAMBIL MOHAMMEDKHAN vs. THE INCOME TAX OFFICER

WP(C)/5886/2020HC KeralaKLHC01015604202027 February 2020Author: HONOURABLE MR.JUSTICE S.V.BHATTI4 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court found a prima facie case for issuing necessary directions to the second respondent (appellate authority) to dispose of the stay petition. The Court directed the appellate authority to consider and dispose of the stay petition (Ext.P4) 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 judgment. The Court disposed of the writ petition based on these directions, addressing the limited prayer made by the petitioner.

What were the facts?

The petitioner, Shajahan Thoongaparambil Mohammedkhan, filed a writ petition before the High Court of Kerala seeking a direction to the appellate authority (the Commissioner of Income Tax (Appeals)) to expeditiously consider and dispose of his stay petition. The petitioner had filed an appeal against an assessment order passed under Section 143(3) of the Income Tax Act. He contended that the mere pendency of an appeal does not automatically grant a stay, and the delay in deciding his stay petition could lead to recovery proceedings by the assessing officer, rendering the statutory appeal ineffective. The petitioner sought to protect his interest pending the appeal by ensuring timely disposal of the stay application.

What were the issues?

1. Whether the High Court can issue directions to the appellate authority to dispose of a stay petition expeditiously, considering the potential for recovery proceedings to render the appeal ineffective? The assessee argued that the delay in disposing of the stay petition could lead to coercive recovery steps by the assessing officer, making the statutory appeal academic or ineffective. The assessee relied on the principle that the law provides for protecting the interest of an appellant pending appeal and that orders on stay petitions should be passed expeditiously. The revenue's contentions were not recorded in the judgment.

Which sections of the Income-tax Act were involved?

Section 143(3)

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 S.V.BHATTI THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941 WP(C).No.5886 OF 2020(I) PETITIONER: SHAJAHAN THOONGAMPARAMBIL MOHAMMEDKHAN THOONGAMPARAMBIL HOUSE NADACKAL P.O., ERRATTUPETTA KOTTAYAM DISTRICT PIN - 686 121 BY ADVS. SRI.SUNIL CYRIAC SMT.DONA AUGUSTINE RESPONDENTS: 1 THE INCOME TAX OFFICER WARD 4, OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX KOTTAYAM RANGE, INCOME TAX OFFICE, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM - 686 001 2 THE COMMISSIONER OF INCOME TAX (APPEALS) OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS) INCOME TAX OFFICE, PUBLIC LIBRARY BUILDING SHASTRI ROAD, KOTTAYAM - 686 001 BY SRI. JOSE JOSEPH, SC 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.5886 OF 2020(I) 2 JUDGMENT Dated this the 27th day of February 2020 The petitioner filed appeal in Ext.P3 aggrieved by the order of assessment in Ext.P1 made under Section 143(3) of the Income Tax Act. The petitioner has filed the appeal along with Ext.P4 stay petition. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Ext.P4 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.P4 stay petition results in the assessing officer taking steps for recovering the tax amount which is under challenge in Ext.P3. 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 WP(C).No.5886 OF 2020(I) 3 order on stay petition is passed expeditiously. Hence the writ petition. 3. Perused Exts. P1, P2, P3 and P4. Prima facie I am satisfied that a case is made out for issuing necessary directions to second respondent to dispose of the stay petition in Ext.P4. 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/second respondent considers and disposes of Ext.P4 stay petition 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 DCS

WP(C).No.5886 OF 2020(I) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER DATED 23.12.2019 ISSUED BY THE 1ST RESPONDENT FOR THE ASSESSMENT YEAR 2017-18 EXHIBIT P2OF THE NOTICE OF DEMAND DATED 23.12.2019 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT EXHIBIT P3OF THE APPEAL DATED 20.01.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P4OF THE STAY PETITION DATED 05.02.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P5OF THE COMMUNICATION DATED 05.02.2020 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT P6OF THE JUDGMENT DATED 11.02.2020 IN W.P. (C).NO. 3838 OF 2020 OF THIS HON'BLE COURT.

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