M.J. LAWRENCE vs. DEPUTY COMMISSIONER OF INCOME TAX

WP(C)/7612/2018HC KeralaKLHC01039202201807 March 2018Author: HONOURABLE MR. JUSTICE P.B.SURESH KUMAR5 pages

AI SummaryRemanded

What did the High Court hold?

The High Court of Kerala, in its order dated March 7, 2018, disposed of the writ petition. The Court noted that the petitioner had approached the Court challenging the assessment order. However, the Court observed that the petitioner had an alternative remedy of filing a statutory appeal before the Income Tax Appellate Tribunal (ITAT). Since the petitioner had not exhausted this alternative remedy, the Court did not delve into the merits of the case. The Court directed the petitioner to approach the ITAT and, if the appeal is filed within a specified period, the ITAT would be directed to consider the appeal on its merits, without being influenced by the delay in filing. The specific finding on the assessment order's sustainability was not made.

What were the facts?

The petitioner, M.J. Lawrence, has filed a writ petition before the High Court of Kerala challenging an order passed by the Deputy Commissioner of Income Tax, Central Circle-1, Ernakulam. The petitioner is aggrieved by the assessment order for the assessment year 2014-15. The petitioner had previously filed an appeal before the Commissioner of Income Tax (Appeals), Ernakulam, which was dismissed. The present writ petition is filed against the assessment order, and the procedural history indicates that the petitioner is seeking redressal against the revenue's action. The amount in dispute is not explicitly stated in the provided text.

What were the issues?

1. Whether the assessment order passed by the Deputy Commissioner of Income Tax is sustainable in law, considering the grounds raised by the petitioner. (Question of law and fact) Assessee's contentions: The petitioner argues that the assessment order is flawed and seeks to challenge it. Specific grounds for challenge are not detailed in the provided text, but the filing of a writ petition implies a contention that the order suffers from illegality or procedural impropriety. Revenue's contentions: The revenue, represented by the Deputy Commissioner of Income Tax and supported by the Standing Counsel, is defending the assessment order. Their arguments are not detailed in the provided text, but they would likely contend that the assessment was made in accordance with the law and the facts available.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939 WP(C).No. 7612 of 2018 PETITIONER M.J. LAWRENCE MADATHIPARAMBIL(KADMATTUPARAMBIL), MARADU P.O.,KOCHI, PIN-682 304. BY ADVS.SRI.ANIL D. NAIR SRI.R.SREEJITH SRI.P.JINISH PAUL KUM.MEKHALA M.BENNY SRI.ASISH MOHAN SRI.G.KRISHNAKUMAR (MALLYA) SMT.MARY JOSSY SRI.ACHYUT K PADMARAJ RESPONDENTS: 1. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1,ERNAKULAM-682 018. 2. THE COMMISSIONER OF INCOME TAX(APPEALS), ERNAKULAM-682 018. BY SRI.SREELAL WARRIAR, C.G.C BY STANDING COUNSEL: SRI.JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 7612 of 2018 (B) APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DATED 21.12.2017 OF THE 1ST RESPONDENT. EXT.P2: TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE STAY PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF THE CHALLANS EVIDENCING THE PAYMENTS DATED 31.1.2018. EXT.P5: TRUE COPY OF THE CHALLANS EVIDENCING THE PAYMENTS DATED 28.2.2018. EXT.P6: TRUE COPY OF THE ORDER DATED 28.2.2018 ISSUED BY THE 1ST RESPONDENT. EXT.P7: TRUE COPY OF THE OFFICE MEMORANDUM DATED 29.2.2016. EXT.P8: TRUE COPY OF THE OFFICE MEMORANDUM DATED 31.7.2017. RESPONDENT'S EXHIBITS:NIL //TRUE COPY// SD/- PA TO JUDGE rsr

P.B.SURESH KUMAR, J. -------------------------------------------- W.P.(C).No.7612 of 2018 --------------------------------------------------------------- Dated this the 7th day of March, 2018 J U D G M E N T

Petitioner is an assessee under the Income Tax Act (the Act). The self assessment made by the petitioner for the year 2007-'08 has been revised by the Assessing Authority invoking the power under Section 143(3), in terms of Ext.P1 order. Ext.P1 order has been challenged by the petitioner in Ext.P2 appeal. Pending disposal of Ext.P2 appeal, the petitioner preferred Ext.P3 application invoking sub-section (6) of Section 220 of the Act before the Assessing Authority. Ext.P3 stay petition has now been disposed of by the Assessing Authority in terms of Ext.P6 order. Ext.P6 order is under challenge in the writ petition.

W.P.(c).No.7612 of 2018 : 2 : 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. The case of the petitioner is that in terms of various circulars issued by the Central Board of Direct Taxes (CBDT), the petitioner is liable to pay only 20% for the purpose of getting stay and the petitioner has already deposited 20% of the tax demanded in terms of Ext.P1 order. 4. The learned Standing Counsel for the respondents submitted, on instructions, that deviations can be drawn from the directions issued by the CBDT in appropriate cases. Having regard to the facts and circumstances of the case as also the submissions made at the Bar, I deem it appropriate to permit the petitioner to prefer an application for stay before the appellate authority in Ext.P2 appeal, within a week from the date of receipt of a copy of this judgment, and directing the appellate authority to pass orders on the said stay petition. Ordered accordingly. Needless to say that the order passed by the appellate

W.P.(c).No.7612 of 2018 : 3 : authority on the stay petition will govern the matter. Needless also to say that till orders are passed on the application for stay directed to be preferred by the petitioner, further proceedings for realization of the amounts covered by Ext.P1 order shall be deferred. Sd/- P.B.SURESH KUMAR

JUDGE rsr

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