E.NOUSHAD vs. DEPUTY COMMISSIONER OF INCOME TAX

WP(C)/14670/2021HC KeralaKLHC01039243202123 July 2021Bench: HONOURABLE MR. JUSTICE A.M.BADAR6 pages

AI SummaryPartly Allowed

What did the High Court hold?

The High Court of Kerala allowed the writ petition. The Court directed the second respondent (ITAT) to decide the stay petitions (Exts. P10 to P12) filed by the petitioner in the pending appeals within a period of one month from the date of communication of the judgment. The Court also directed that until the disposal of the stay petitions, the respondents shall keep coercive proceedings for recovery of the amount determined as per the assessment orders in abeyance. The petitioner was directed to cooperate with the ITAT in the disposal of the stay petitions. The Court found that the interest of justice would be served by directing the ITAT to decide the stay petitions within a reasonable time and keeping recovery in abeyance until then.

What were the facts?

The petitioner, E. Noushad, filed a writ petition before the High Court of Kerala challenging the initiation of recovery proceedings by the respondents. The assessment orders for assessment years 2007-08, 2008-09, and 2009-10 were under appeal before the Income Tax Appellate Tribunal (ITAT), the second respondent. The petitioner had also filed stay petitions (Exts. P10 to P12) along with these appeals, which were pending adjudication. The petitioner's grievance was that despite the pendency of appeals and stay petitions, recovery proceedings were being initiated for the amounts assessed. The respondents contended that they were entitled to recover the assessed amounts.

What were the issues?

1. Whether the respondents can initiate recovery proceedings for amounts assessed when appeals and stay petitions are pending before the ITAT? (Question of law and fact, concerning the procedural rights of an assessee during the pendency of appeals and stay petitions). Assessee's Contention: The petitioner argued that recovery proceedings should not be initiated while appeals and stay petitions are pending before the ITAT. The petitioner relied on the principle that recovery should be kept in abeyance until the appeals are decided. Revenue's Contention: The learned standing counsel for the respondents contended that the respondents are entitled to recover the amount assessed against the petitioner, implying no impediment due to pending appeals or stay petitions.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943 WP(C) NO. 14670 OF 2021 PETITIONER/S: E.NOUSHAD AGED 54 YEARS MANNANTETHARAYIL, PALLISERICKAL P.O., SASTHAMCOTTA, KOLLAM, KERALA - 690 521. BY ADVS. ANIL D. NAIR TELMA RAJU SANGEETH JOSEPH JACOB CHRISTINA ANNA PAUL RESPONDENT/S: 1 DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE, KOLLAM CHEMMANMUKKU RAILWAY STATION ROAD, KARBALA, KOLLAM, KERALA - 691 001. 2 INCOME TAX APPELLATE TRIBUNAL KAKKANAD, ERNAKULAM, KERALA - 682 037 REPRESENTED BY ITS SECRETARY. 3 TAX RECOVERY OFFICER (CENTRAL) KOCHI KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, KERALA - 682 011. OTHER PRESENT: SRI.JOSE JOSEPH,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 14670 OF 2021 -2- A.M.BADAR, J. - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - WP(C) NO. 14670 OF 2021 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2021 JUDGMENT The learned standing counsel takes notice for the respondents. 2. Heard both sides. 3. The challenge to the assessment orders for the assessment years 2007-08, 2008-09 and 2009-10 are reportedly pending in appeal before the 2nd respondent. The learned counsel for the petitioner submits that the petitioner has preferred stay petitions Exts.P10 to P12 in those appeals, which are pending for adjudication. The grievance of the petitioner is to the effect that despite the pendency of the appeal as well as the stay petitions, the respondents have initiated recovery proceedings for

WP(C) NO. 14670 OF 2021 -3- recovery of the amount assessed as assessed by the assessment orders. 4. The learned standing counsel appearing for the respondents opposed the petition by contending that the respondents are entitled to recover the amount assessed against the petitioner. I have considered the submissions made above. The assessment is pending adjudication in appeals which are accompanied by the stay petitions at Exts.P10 to P12. In this view of the matter, the interest of justice would be served, if the 2nd respondent is directed to decide atleast the stay petitions within a reasonable time and till then, the recovery is kept in abeyance. In this view of the matter, this Writ Petition is allowed with following directions:- The 2nd respondent is directed to decide the stay petitions Exts.P10 to P12 in pending appeals filed by the petitioner within a period of one month from the date of communication of this

WP(C) NO. 14670 OF 2021 -4- judgment by the 2nd respondent. The petitioner to co-operate with the 2nd respondent in disposal of the stay petitions. Till the disposal of the stay petitions, the respondents shall keep the coercive proceedings for recovery of the amount determined as per the assessment order in abeyance. sd A.M.BADAR, JUDGE. dl/

WP(C) NO. 14670 OF 2021 -5- APPENDIX OF WP(C) 14670/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER OF THE YEAR 2007-08 DATED 31/03/2014. Exhibit P2 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008-09 DATED 31/03/2014. Exhibit P3 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2009-10 DATED 31/03/2014. Exhibit P4 TRUE COPY OF THE MODIFIED ASSESSMENT ORDER FOR THE YEAR 2007-08 DATED 10/10/2020. Exhibit P5 TRUE COPY OF THE MODIFIED ASSESSMENT ORDER FOR THE YEAR 2008-09 DATED 10/11/2020. Exhibit P6 TRUE COPY OF THE MODIFIED ASSESSMENT ORDER FOR THE YEAR 2009-10 DATED 10/11/2020. Exhibit P7 TRUE COPY OF THE APPEAL MEMORANDUM ITA 16/21 FILED FOR THE 2007-08. Exhibit P8 TRUE COPY OF THE APPEAL MEMORANDUM ITA 17/21 FILED FOR THE YEAR 2008-09. Exhibit P9 TRUE COPY OF THE APPEAL MEMORANDUM ITA 18/21 FILED FOR THE YEAR 2009-10.

WP(C) NO. 14670 OF 2021 -6- Exhibit P10 TRUE COPY OF THE STAY PETITION FILED BY THE ITA 16/21 PETITIONER FOR THE YEAR 2007-08. Exhibit P11 TRUE COPY OF THE STAY PETITION FILED BY THE ITA 17/21 PETITIONER FOR THE YEAR 2008-09. Exhibit P12 TRUE COPY OF THE STAY PETITION FILED BY THE ITA 18/21 PETITIONER FOR THE YEAR 2009-10. Exhibit P13 TRUE COPY OF THE DEMAND NOTICE DATED 01/07/2021 ISSUED BY THE TAX TAX RECOVERY OFFICER.

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