M/S. ATLAS HOLIDAY PRIVATE LIMITED V. UNION OF INDIA

WP(C)/35895/2018

AI Insights

The case involves M/s. Atlas Holiday Private Limited, which challenged the coercive recovery actions initiated by the Income Tax Department following an assessment and penalty order. The petitioner initially approached the High Court after receiving unfavorable orders but was directed to the appellate forum. Due to a slight delay in filing the appeal and subsequent stay petition, the department proceeded with recovery actions. The petitioner argued that the delay was due to late receipt of the certified copy of the judgment. The court found the delay minor and ordered the appellate authority to prioritize the stay application, halting further recovery actions until a decision is made.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 678312 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 07-11-2018
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JAI SHANKAR NAIR
• Assessee Lawyers: JOSE JACOB
• Keywords: Appeal Filing Delay; Assessment Order; Coercive Steps; Penalty order; Stay Petition
• Section: 144; 271(1)(c); 133A; 226(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940 WP(C).No. 35895 of 2018 PETITIONER/S: M/S. ATLAS HOLIDAY PRIVATE LIMITED XI/305H, NEAR FEDERAL BANK, OPPOSITET CIAL, VAPPALASSERY, NEDUMBESSERY 683572, REPRESENTED BY ITS GENERAL MANAGER, JOSE VARGHESE BY ADV. SRI.JOSE JACOB RESPONDENT/S: 1 UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI 110001 2 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, INCOME TAX OFFICE, S.T. NAGAR, THRISUR 6820001 3 TAX RECOVERY OFFICER, CORPORATE, C.R. BUILDING, 3RD FLOOR (304) I.S. PRESS ROAD, KOCHI 682018 4 COMMISSIONER OF INCOME TAX (APPEALS)-4, POORNIMA 28/243, NEAR MANORAMA JUNCTION PANAMPILLY NAGAR, COCHIN 682036 -2- W.P.(C). No. 35895 of 2018 5 DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1 (1) K, CENTRAL REVENUE BUILDING, COCHIN 682018 6 STATE BANK OF INDIA VADAKKANETH PLAZA, OPP. INTERNATIONAL TERMINAL CIAL, NEDUMBASSERY COCHIN 683572 OTHER PRESENT: SC SRI. JOSE JOSEPH., CGC. SRI. JAISHANKAR V. NAIR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, an assessee, suffered the Ext.P1 assessment order and the Ext.P3 penalty order. First, the petitioner approached this Court. But this Court refused to interfere; instead, it required the petitioner to approach the appellate forum. Through Ext.P6 judgment, the Court granted thirty days for the petitioner to approach the appellate forum; till then it protected the petitioner from coercive steps. Though the petitioner ought to have filed the appeal by 09.09.2017, it filed the appeal on 11.09.2017. Of course, the petitioner submits that it received the certified copy of the judgment -3- W.P.(C). No. 35895 of 2018 a little late. 2. Though the petitioner filed a stay petition on 12.09.2017, the 4th respondent has so far not considered that petition. In the meanwhile, the Department has initiated coercive steps to recover the amounts covered by Exts.P1 and P3. Aggrieved, the petitioner has filed this writ petition. 3. Heard the learned counsel appearing for the petitioner, and the learned Standing Counsel appearing for the respondents. 4. In response to the submissions made by the petitioner's counsel, the Standing Counsel has submitted that the petitioner filed the appeal beyond the date this Court allowed in Ext.P6. He has also submitted that the petitioner merely wants to stay of all further proceedings, but never pressed for disposal of the stay petition as a relief, in this writ petition. 5. I reckon there is a couple of days delay in the petitioner's filing an appeal. That may not be fatal. More particularly, the petitioner asserts that it received the certified copy a little late. 6. At any rate, the petitioner's stay petition has been -4- W.P.(C). No. 35895 of 2018 pending for more than one year. Unless, the appellate authority considers it, the petitioner's very appeal may become a mere ritual. Under these circumstances, I reckon the Tribunal will consider the petitioner's stay application, expeditiously. Until it considers that application, the department shall defer all coercive steps. Because of this arrangement, the garnishee order the department served on the 6th respondent stands vacated. With the above observation, I dispose of the writ petition. Sd/- DAMA SESHADRI NAIDU JUDGE das APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ASSESSMENT ORDER UNDER SECTION 144 OF THE INCOME TAX ACT DTD. 27.12.2016 EXHIBIT P2 COPY OF DEMAND NOTICE RAISING DEMAND OF RS. 94, 69,130 PURSUANT TO ORDER U/S 144 DTD.27.12.2016 -5- W.P.(C). No. 35895 of 2018 EXHIBIT P3 COPY OF THE PENALTY ORDER PASSED UNDER SECTION 271 (1) (C) OF THE INCOME TAX ACT DTD. 26.05.2017 EXHIBIT P4 COPY OF THE DEMAND NOTICE RAISING 26.5.2017 DEMAND OF RS. TO,66,600 PURSUANT TO ORDER U/S. 271 (1) (C) DTD. 26.5.2017 EXHIBIT P5 COPY OF THE NOTICE RECEIVED UNDER SECTION 226 (3), OF THE INCOME TAX ACT.31.7.2017 EXHIBIT P6 COPY OF THE WRIT PETITION ORDER IN WPC NO. 26334 OF 2017 DTD. 09.08.2017 EXHIBIT P7 COPY OF THE CERTIFICATE IN FORM NO. 57 FOR RECOVERY OF TAX DTD 14.6.2017 EXHIBIT P8 COPY OF THE ORDER OF ATTACHMENT OF IMMOVABLE PROPERTY DTD. 07.08.2017 EXHIBIT P9 COPY OF THE LETTER FIELD WITH THE TAX RECOVERY OFFICER AGAINST THE ORDER OF ATTACHMENT DTD. 16.8.17 EXHIBIT P10 COPY OF THE APPEAL IN FORM 35 FILED WITH THE CIT (A) AGAINST THE ASSESSMENT ORDER AND THE PENALTY ORDER DATED 11.09.2017 EXHIBIT P11 COPY OF THE PETITION FOR STAY OF COLLECTION OF TAX FILED WITH THE CIT (A) DTD. 12.9.2017 EXHIBIT P12 COPY OF THE LETTER FILED WITH CIT (A) FOR EARLY HEARING OF APPEAL AND STAY PETITION DTD 08.02.2018 EXHIBIT P13 COPY OF THE PETITION FOR STAY OF COLLECTION FIELD WITH THE ASSESSING OFFICER DTD 15.02.2018 -6- W.P.(C). No. 35895 of 2018 EXHIBIT P14 COPY OF ATTACHMENT ORDER FOR PAYMENT TO THE ASSESSING OFFICER OF CURRENT COINS AND CURRENCY NOTES BY THE TAX RECOVERY OFFICER DTD 31.10.2018 EXHIBIT P15 COPY OF LETTER FOR PROCEEDINGS OF SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT 1961 DTD. 31.10.2018 EXHIBIT P16 COPY OF THE SCREENSHOT ONLINE 01.11.2018 BANKING TRANSACTION STATUS "