SHAM BASHEER vs. INCOME TAX OFFICER

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WP(C)/7264/2020HC KeralaKLHC01019133202010 March 2020Author: HONOURABLE MR. JUSTICE AMIT RAWAL4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court, without expressing any opinion on the merits of the case, disposed of the writ petition by issuing directions to the second respondent (Commissioner of Income Tax (Appeals)). The direction was to decide the application for condonation of delay and the stay application within a period of one month from the receipt of the certified copy of the judgment. Pending the adjudication of these applications, any demand notice, including the one at Ext.P4 or any future demand, was ordered to be kept in abeyance. The interim stay was explicitly stated to be operative only until the disposal of the stay and condonation delay applications. The operative direction was to decide the applications expeditiously.

What were the facts?

The petitioner, Sham Basheer, proprietor of M/s. AFC Fruits, filed a writ petition before the High Court of Kerala challenging an assessment order dated December 31, 2019, for the assessment year 2017. The petitioner had preferred an appeal before the Commissioner of Income Tax (Appeals) along with a stay application and a delay condonation application. The petitioner contended that a demand notice under Section 156 of the Income Tax Act was issued along with the assessment order during the pendency of the appeal, creating a predicament. The petitioner sought directions for the appellate authority to consider the stay and delay condonation applications.

What were the issues?

1. Whether the High Court should issue directions to the Commissioner of Income Tax (Appeals) to consider the petitioner's application for condonation of delay and stay application, given the issuance of a demand notice during the pendency of the appeal? (Question of procedure and interim relief) Assessee's Contention: The petitioner argued that the issuance of a demand notice under Section 156 of the Income Tax Act, along with the assessment order, while an appeal was pending, created a difficult situation. The petitioner sought directions for the appellate authority to address the interim prayer for stay. Revenue's Contention: The judgment does not record any specific contentions from the revenue.

Which sections of the Income-tax Act were involved?

Section 156

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 TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941 WP(C).No.7264 OF 2020(G) PETITIONER: SHAM BASHEER AGED 48 YEARS PROPRIETOR OF M/S. AFC FRUITS RESIDING AT ASHIK MANZIL, NEAR VIMALA HOSPITAL, ETTUMANOOR, KOTTAYAM, 686631, KEARLA, INDIA, BY ADV. SMT.K.LATHA RESPONDENTS: 1 INCOME TAX OFFICER OFFICE OF THE INCOME TAX OFFICER, WARD 4, KOTTAYAM-686001. 2 THE COMMISSIONER OF INCOME TAX (APPEALS) SHASTRI ROAD, KOTTAYAM-686001. SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.7264 OF 2020(G) 2

JUDGMENT The petitioner has approached this Court against the assessment order dated 31.12.2019 for the assessment year 2017 preferred an appeal Ext.P2, stay application Ext.P3 and delay condonation application Ext.P3(a). The learned counsel for the petitioner submits that during the pendency of the appeal the demand notice under Section 156 of the Income Tax Act along with the assessment order had already issued and therefore, the predicament of the petitioner is writ large.

2.

I am of the view that the petitioner’s grievance for the time being can be only addressed by issuing directions to the 2nd respondent to consider the application for stay and condonation of delay for consideration of the interim prayer sought in terms of the memorandum of appeal (Ext.P2) was staying the demand, so that the fate can be decided. Without expressing any opinion on the merits of the matter, I dispose of the writ petition with a direction to the respondent to decide the application for condonation of delay and stay (Exts.P3 and P3(a)) within a period of one month

WP(C).No.7264 OF 2020(G) 3 from the receipt of the certified copy of this judgment. Till then the demand Ext.P4 or any future demand he prays during the interregnum is ordered to be kept in abeyance. It is made clear that the interim stay is only till the adjudication of stay and condonation delay application. This writ petition will stand disposed of. AMIT RAWAL nak JUDGE

WP(C).No.7264 OF 2020(G) 4

Appendix — schedule of exhibits
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE ASSESSMENT ORDER NO.ITBA/AST/S/143(3)/2019- 20/1023548847(1) ISSUED U/S.143(3) OF INCOME TAX ACT 1961, DATED 31.12.2019 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER FOR THE ASSESSMENT YEAR 2017- 18 EXHIBIT P2 THE TRUE COPY OF THE APPEAL IN FORM NO.35 ALONG WITH GROUNDS OF APPEAL FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT AGAINST THE EXT P1 ORDER. EXHIBIT P3 THE TRUE COPY OF STAY PETITION FILED BY THE PETITIONER IN THE P2 APPEALS, EXHIBIT P3A THE TRUE COPY OF DELAY CONDONATION PETITION FILED BY THE PETITIONER IN THE P2 APPEALS. EXHIBIT P4 THE TRUE COPY OF THE NOTICE OF DEMAND UNDER SECTION 156 OF INCOME TAX ACT 1961 DATED 31.12.2019 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. //TRUE COPY// P.A TO JUDGE

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