PADIYATH MOOSA HAJI vs. INCOME TAX OFFICER

WP(C)/26605/2021HC KeralaKLHC01066625202125 November 2021Bench: HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the writ petition by directing the 3rd respondent (Commissioner of Income Tax (Appeals)) to consider and pass appropriate orders on the stay petition within three months from the date of receipt of a copy of the judgment. The Court further clarified that if circumstances warranted, the Appellate Authority could also take up and consider the appeal itself instead of just the stay petition. Until the stay petition is considered, coercive proceedings against the petitioner are to be kept in abeyance, and the petitioner is to be granted an opportunity of hearing. This direction is contingent on the appeal still being pending; if the appeal has already been disposed of, the petitioner must pursue other remedies. The Court did not decide the merits of the assessment order or the appeal.

What were the facts?

The petitioner, Padiyath Moosa Haji, filed a writ petition before the High Court of Kerala challenging an assessment order for the assessment year 2017-18. The petitioner had preferred a statutory appeal along with a stay petition before the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre. The petitioner contended that while the appeal and stay petition were pending, the respondents were initiating recovery proceedings, which would cause irreparable loss. The petitioner sought a direction for the disposal of the appeal and stay petition. The respondents' counsel expressed apprehension regarding the current status of the appeal.

What were the issues?

1. Whether the High Court should direct the Commissioner of Income Tax (Appeals) to consider and pass orders on the stay petition filed by the petitioner, and if warranted, to consider the appeal itself, given that recovery proceedings are being initiated while these are pending? Assessee's Contention: The petitioner argued that recovery proceedings are being initiated while the statutory appeal and stay petition are pending before the appellate authority, which would lead to irreparable loss and hardship. The petitioner sought a direction for the disposal of these pending matters. Revenue's Contention: The learned Standing Counsel for the respondents expressed apprehension as to whether the appeal itself would have been disposed of by the time the Court hears the matter.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 WP(C) NO. 26605 OF 2021 PETITIONER : PADIYATH MOOSA HAJI, AGED 68 YEARS, PADIYATH HOUSE, PAVUKKONAM, VANIAMKULAM, PALAKAKD-679522. BY ADVS. T.M.SREEDHARAN (SR.) NISHA JOHN V.P.NARAYANAN RESPONDENTS : 1. INCOME TAX OFFICER WARD 3, AYAKARBHAVAN, ENGLISH CHURCH ROAD, PALAKKAD-678014. 2. NATIONAL FACELESS ASSESSMENT CENTRE, NORTH BLOCK, NEW DELHI-110001. 3. THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE, NEW DELHI – 110 001 BY SRI.JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 26605 OF 2021 2 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C).No.26605 of 2021 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 25th day of November, 2021 JUDGMENT Aggrieved by Ext.P1 assessment order for the year 2017-18, petitioner has preferred a statutory appeal before the 3rd respondent. Along with the appeal, a petition for stay was also preferred as evident from Ext.P4. The learned Senior Counsel appearing for the petitioner submits that the stay petition as well as the appeal are pending consideration and in the meantime, respondents are initiating proceedings for recovery of the amount and therefore the petitioner will be subject to irreparable loss and hardship, if the appeal is not disposed of. 2. I have heard Sri.T.M.Sreedharan, the learned Senior Counsel for the petitioner as well as the learned Standing Counsel for the respondents Adv.Jose Joseph. 3. The learned Standing Counsel expresses his apprehension as to whether the appeal itself would have been disposed of by now. 4. Having regard to the circumstances arising in the case

WP(C) NO. 26605 OF 2021 3 and the contentions raised across the bar, I am of the view that this writ petition can be disposed of by directing the 3rd respondent to consider and pass appropriate orders on the stay petition within a period of three months from the date of receipt of a copy of this judgment. It is also clarified that if the circumstances warrant, the Appellate Authority shall also be at liberty to take up the appeal and consider the same and pass appropriate orders thereon instead of the stay petition. 5. Till consideration of the stay petition, coercive proceedings initiated against the petitioner shall be kept in abeyance. Needless to mention, the petitioner shall be granted an opportunity of hearing, in accordance with law. It is clarified that the aforesaid direction shall apply only in the event of the appeal pending consideration. If the appeal has already been disposed of, petitioner will have to workout his remedies elsewhere. The writ petition is disposed of as above. Sd/- BECHU KURIAN THOMAS, JUDGE RKM

WP(C) NO. 26605 OF 2021 4 APPENDIX OF WP(C) 26605/2021 PETITIONER'S EXHIBITS : Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 11.12.2019 U/S 144 OF THE ACT PASSED BY THE 1ST RESPONDENT ALONG WITH DEMAND NOTICE. Exhibit P2 TRUE COPY OF THE PENALTY ORDER U/S 271F OF THE ACT PASSED BY NFAC, DELHI DATED 01.06.2021. Exhibit P3 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 10.02.2020 FILED BEFORE THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE STAY PETITION DATED 10.02.2020 FILED BEFORE THE 3RD RESPONDENT. Exhibit P5 TRUE COPY OF THE PETITIONER'S REPLY DATED 18.10.2021 FILED BEFORE THE 3RD RESPONDENT.

Recent GST High Court judgments

Search GST case law →