M/S. THARIFF BUILDERS PRIVATE LIMITED vs. ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/41364/2018HC KeralaKLHC01096160201819 December 2018Bench: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU3 pages

AI SummaryRemanded

What did the High Court hold?

The High Court acknowledged that the petitioner had filed their appeal and stay petition within the statutory time limits. The Court found that procedural fairness dictated that the revenue authorities should await the decision of the appellate authority on the stay petition before proceeding with any coercive measures. Therefore, the Court disposed of the writ petition by directing the respondent authorities to defer coercive steps until the 2nd respondent (Commissioner of Income Tax (Appeals)) considered the stay petition. The Court also expressed hope that the 2nd respondent would dispose of the stay petition expeditiously. No specific assessment year or amount in dispute was mentioned in the judgment.

What were the facts?

The petitioner, M/s. Tharif Builders Private Limited, is a registered dealer under the Income Tax Act. They filed an appeal against an assessment order (Ext.P1) before the 2nd respondent, the Commissioner of Income Tax (Appeals) III. The petitioner also filed a stay petition along with their appeal. However, the petitioner alleged that the revenue authorities were initiating coercive steps before the appellate authority could decide on the stay petition. Consequently, the petitioner filed this writ petition before the High Court of Kerala seeking to prevent coercive action until the stay petition was adjudicated.

What were the issues?

1. Whether the petitioner has exhausted their statutory remedy by filing an appeal and a stay petition before the appellate authority? (Question of law and fact) 2. Whether the revenue authorities should defer coercive steps until the appellate authority decides on the stay petition? (Question of law) Assessee's Contention: The petitioner argued that they had filed their appeal and stay petition within the stipulated time. They contended that coercive steps were being taken prematurely, before the appellate authority had an opportunity to consider their request for a stay. They sought a direction from the Court to prevent such actions. Revenue's Contention: The judgment does not record any specific contentions made by the revenue.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940 WP(C).No. 41364 of 2018 PETITIONER/S: M/S. THARIFF BUILDERS PRIVATE LIMITED 2ND FLOOR, THARIF ARCADE, PUTHIYARA, KOZHIKODE-673 004. BY ADVS. SRI.ANIL D. NAIR SHRI.GOKULRAJ L. SMT. ARYA ANIL SMT. NILOOFAR O. NIZAM SRI.R.SREEJITH RESPONDENT/S: 1 ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE(2), KOZHIKODE-673 001. 2 THE COMMISSIONER OF INCOEM TAX(APPEALS III), ERNAKULAM-682 018. 3 TAX RECOVERY OFFICER (CENTRAL), COCHIN-682 011. OTHER PRESENT: SRI JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

-2- W.P.(C). No. 41364 of 2018 JUDGMENT The petitioner, a registered dealer under the Income Tax Act on the rolls of the 1st respondent, questioned the Ext.P1 assessment order, before the 2nd respondent. The petitioner has also filed stay petition in the appeal. Ventilating his grievance that the authorities are taking coercive steps before the appellate authority could consider the stay petition, the petitioner has filed this writ petition. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. I reckon the petitioner has exercised on time his statutory remedy of filing an appeal. It appears that he has also filed a stay petition. Procedural fairness demands that the authorities may wait, before taking further steps, until the appellate authority decides on the stay petition. Therefore, I dispose of the writ petition directing the respondent authority to defer coercive steps until the 2nd

-3- W.P.(C). No. 41364 of 2018 respondent considers the stay petition. I also hope that the 2nd respondent will dispose of the stay petition expeditiously. Sd/- DAMA SESHADRI NAIDU JUDGE das APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 30.12.2017. EXHIBIT P2 TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF STAY PETITION FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE APPLICATION UNDER SECTION 220(6) FILED BEFORE THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER BY THE 1ST RESPONDENT DATED 02.02.2018. EXHIBIT P6 TRUE COPY OF LETTER DATED 12.02.2018. EXHIBIT P7 TRUE COPY OF REVENUE RECOVERY LETTER DATED 11.12.2018.

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