SHAJI AYYAPPAN vs. THE INCOME TAX OFFICER

WP(C)/396/2019HC KeralaKLHC01001177201908 January 2019Bench: HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court directed the Commissioner of Income Tax (Appeals) (2nd respondent) to consider the petitioner's stay application within one month after providing notice to the petitioner. Until the stay application is considered, recovery proceedings are to be kept in abeyance. The Court noted that any delay in the proceedings would be considered before the stay application is decided. The Court did not decide on the merits of the appeal or the stay application itself, but rather on the procedural aspect of ensuring the stay application is heard and decided promptly. The ratio decidendi is that a stay application, even if filed belatedly in the appellate process, should be considered expeditiously, especially when recovery proceedings are initiated, and recovery should be held in abeyance pending its disposal.

What were the facts?

The petitioner, Shaji Ayyappan, filed an appeal against an assessment order (Ext.P1) before the Commissioner of Income Tax (Appeals) (2nd respondent). This appeal has been pending for over three years. Following a recovery notice (Ext.P4) issued on December 6, 2018, the petitioner filed a stay petition on January 4, 2019. The respondents objected to an interim order staying recovery, noting that the petitioner had not initially moved for a stay when filing the appeal. The petitioner is the assessee, and the respondents represent the revenue.

What were the issues?

1. Whether the Commissioner of Income Tax (Appeals) should consider the petitioner's stay application, filed after a recovery notice was issued, despite not initially seeking a stay at the time of filing the appeal. Assessee's Contention: The petitioner, having filed an appeal against the assessment order, is entitled to have their stay application considered, especially when recovery proceedings have been initiated after a significant delay in the appeal process. Revenue's Contention: The revenue objected to granting an interim order staying recovery, arguing that the petitioner had not moved for a stay before the Commissioner of Income Tax (Appeals) when the appeal was initially filed. The revenue did not cite any specific provisions or authorities in support of this objection.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY ,THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940 WP(C).No. 396 of 2019 PETITIONER: SHAJI AYYAPPAN AGED 47 YEARS S/O.V.S.AYYAPPAN, VILLA.NO.2, MYSTIC BELLS, NEAR KANIYAMPUZHA BRIDGE, EROOR, ERNAKULAM-682306. BY ADVS.SRI.HARISANKAR V. MENON SMT.K.KRISHNA SMT.MEERA V.MENON RESPONDENTS: 1 THE INCOME TAX OFFICER CORPORATE WARD-2(2), I.S. PRES ROAD, KOCHI-682018. 2 THE COMMISSIONER OF INCOME TAX(APPEALS) ERNAKULAM-682018. 3 THE TAX RECOVERY OFFICER, C.R.BUILDING, 3RD FLOOR, (304), IS.PRESS ROAD, KOCHI- 18. BY SRI.JOSE JOSEPH, SC BY GOVERNMENT PLEADER SMT.M.M. JASMINE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 396 of 2019 -:2:- JUDGMENT The petitioner has filed an appeal as against Ext.P1 assessment order before the 2nd respondent. This appeal is pending for more than three years. When recovery sought to be effected, the petitioner moved stay application. 2. The learned standing counsel for the respondents objected granting of interim order, staying the recovery, citing that the petitioner had not moved before the 2nd respondent for the stay, when the appeal was filed. It is to be noted that Ext.P4 recovery notice is initiated only on 06.12.2018. In the said circumstances, the petitioner moved a stay petition on 04.01.2019. 3. There shall be a direction to the 2nd respondent to consider the stay application, within one month, after notice to the petitioner. Till then, recovery proceedings shall be kept in abeyance. If there is any delay, it shall be considered before considering the stay application.

WP(C).No. 396 of 2019 -:3:- This writ petition is disposed of accordingly. Sd/- A.MUHAMED MUSTAQUE JUDGE DST

WP(C).No. 396 of 2019 -:4:- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YER 2015-16 DATED 22.12.2017 EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 21.02.2018 EXHIBIT P3 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 04.01.2019. EXHIBIT P4 COPY OF NOTICE ISSUED BY THE 3RD RESPONDENT DATED 06.12.2018. RESPONDENTS' EXHIBITS:NIL //True copy// P.A.To Judge

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