Babu Cheriyan V. Union of India and Commissioner of Income Tax (Appeals) and Assistant Commissioner of Income Tax (Circle & TPS)

WP(C)/8372/2023

AI Insights

The case involves a writ petition filed by Babu Cheriyan against the Union of India and other respondents concerning an income tax assessment order and subsequent appeals and stay petitions. The petitioner sought a direction for the appellate authority to consider his appeal and stay the operation of the assessment order. The court had previously directed the appellate authority to consider the stay petition, which was filed with the assessment officer. The current writ petition reiterates the request for the appellate authority to consider the stay petition, which had already been disposed of by the assessment officer. The court's decision focuses on ensuring the petitioner fulfills the financial prerequisites for the appeal to be considered.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 817592 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 10-03-2023
• Assessment Year: misc
• Other Referred Cases: W.P. (C) No. 415 of 2022
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; S MANU
• Assessee Lawyers: GEORGE MATHEW; M D SASIKUMARAN; SUNIL KUMAR; A G MATHEW; K T GEORGE; K V ELSA DENNY PINDIS; STEPHY REGI; ADARSH KURIAN
• Keywords: Appeal; Assessment Order; Income Tax; Stay Petition
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI FRIDAY, THE 10TH DAY OF MARCH 2023 / 19TH PHALGUNA, 1944 WP(C) NO. 8372 OF 2023 PETITIONER: BABU CHERIYAN AGED 56 YEARS S/O. CHERIAN, THALAKKULATHIL HOUSE, MUTHOLY P.O., MURICKANADU KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686573 BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. ELSA DENNY PINDIS STEPHY K REGI ADARSH KURIAN RESPONDENTS: 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF FINANCE, INCOME TAX DEPARTMENT, CENTRAL SECRETARIAT, NEW DELHI, PIN - 110001 2 THE COMMISSIONER OF INCOME TAX (APPEALS) CIT (A), PUBLIC LIBRARY BUILDING, LAL BAHADUR SHASTHRI ROAD, KOTTAYAM - 686001 3 ASSISTANT COMMISSIONER OF INCOME TAX (CIRCLE & TPS), PUBLIC LIBRARY BUILDING, LAL BAHADUR SHASTHRI ROAD, KOTTAYAM - 686001 SRI. JOSE JOSEPH, SC. SRI. S. MANU DSGI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8372 OF 2023 2 T.R. RAVI, J. -------------------------------------------- W.P.(C).No.8372 of 2023 -------------------------------------------- Dated this the 10th day of March, 2023 JUDGMENT Admit. DSGI takes notice for the 1st respondent. Standing Counsel takes notice for the respondents 2 and 3. 2. The prayer in the writ petition is for a direction to the 2nd respondent to consider and pass orders on Ext.P2 appeal and Ext.P3 stay petition and to stay the operation of Exts.P1 and P4 during the pendency of Ext.P2 appeal. Ext.P1 is an assessment order dated 22.10.2019. The petitioner has preferred Ext.P2 appeal before the Appellate Authority. However, no application for stay was filed before the appellate authority. Ext.P3 is an application for stay filed before the Assessment Officer on which Ext.P4 order was issued directing the assessee to pay 20% of the disputed demand immediately. The said amount was not paid. Ext.P5 is an order dated 13.12.2021 by which the petitioner was directed to pay the amount by 20.12.2021. Ext.P6 is a reply submitted by the petitioner, wherein he has stated that he has remitted a sum of Rs.5,00,000/- and requesting that the same may be adjusted towards the demand. There is also a further prayer for permitting him to remit the balance amounts of the 20% of WP(C) NO. 8372 OF 2023 3 the demand in instalments. It would appear from Ext.P6 that the petitioner was aware of the order directing him to pay 20% of the demand. However, the petitioner had filed W.P(C).No. 415/2022 treating the application for stay as one preferred along with the appeal. This Court directed the Appellate Authority to consider and pass orders on Ext.P3 stay petition within a period of three months. 3. The Standing Counsel points out that there is no occasion of any order of the nature directed to by this Court being passed, since the stay petition which was actually filed before the Assessment Officer had already been ordered by him. It is thereafter that Ext.P9 intimation was issued on 21.12.2022 requesting the petitioner to clarify the position regarding the stay petition which is pending before the Appellate Authority. In this writ petition also the petitioner prays for a direction to the Appellate Authority to consider and pass orders on Ext.P3 stay petition. As already pointed out, Ext.P3 is only a stay application filed before Assessment Officer which had already been disposed of and the said prayer cannot be granted. The only matter that remains to be considered and ordered is Ext.P2 appeal. For consideration of the appeal the petitioner is yet to remit the 20% of the demand. In such circumstances, the writ petition is disposed of directing the petitioner to pay a sum of Rs.5,00,000/-(Rupees Five Lakhs only) on or before 31.03.2023 and to pay the balance outstanding out of WP(C) NO. 8372 OF 2023 4 the 20% of disputed demand on or before 30.04.2023. The petitioner may produce the proof of having paid these amounts before the Competent Authority within ten days of making the payment as directed above and the Competent Authority shall take up Ext.P2 appeal thereafter and dispose of the same after hearing the petitioner as expeditiously as possible. Sd/- T.R.RAVI JUDGE LEK WP(C) NO. 8372 OF 2023 5 APPENDIX OF WP(C) 8372/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER NO. ITBA/AST/S/143(3)/2019-20/ 1019225252(1) DTD. 22.10.2019 Exhibit P2 TRUE COPY OF APPEAL DTD. 15.11.2019 PREFERRED BY PETITIONER BEFORE 2ND RESPONDENT Exhibit P3 TRUE COPY OF STAY PETITION DTD.03.02.2020 PREFERRED BY PETITIONER BEFORE 3RD RESPONDENT Exhibit P4 TRUE COPY OF ORDER DTD. 11.02.2020 ISSUED BY 2ND RESPONDENT Exhibit P5 TRUE COPY OF NOTICE NO. ITBA/COM/F/17/2021-22/1037742388 (1) DTD. 13.12.2021 Exhibit P6 TRUE COPY OF REPLY DTD. 15.12.2021 SUBMITTED BY PETITIONER TO 3RD RESPONDENT Exhibit P7 TRUE COPY OF TAX PAYER COUNTERFOIL DTD. 15.12.2021 SUBMITTED BY PETITIONER Exhibit P8 TRUE COPY OF JUDGMENT DTD.10.01.2022 IN W.P. (C). NO.415 OF 2022 Exhibit P9 TRUE COPY OF LETTER DTD. 21.12.2022 ISSUED BY 3RD RESPONDENT "