FCI OEN CONNECTORS LTD V. THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/3225/2022

AI Insights

The case involves FCI OEN Connectors Ltd, the petitioner, challenging an assessment order and subsequent orders related to tax demands for the assessment year 2018-19. The petitioner sought to quash the assessment order and related orders under the Income Tax Act, 1961, and also challenged the Faceless Appeal Schemes of 2020 and 2021, which allegedly do not allow for stay applications during the appeal process. The court recognized the petitioner's right to seek a stay on the recovery proceedings during the appeal and found procedural inadequacies in the Faceless Appeal system that prevented the petitioner from filing a stay application.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 751572 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-02-2022
• Assessment Year: misc
• Other Referred Cases: WPC No. 26935/2021
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: JOSEPH MARKOSE; V MARKOS; ABRAHAM MARKOS; ALEXANDER MARKOS; SHARAD KODANTHARA
• Keywords: Assessment Order; Income Tax; Stay Petition; Faceless Appeal Schemes
• Section: 220(6)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 WP(C) NO. 3225 OF 2022 PETITIONER/S: FCI OEN CONNECTORS LTD 29/2089, TRIPUNBITHURA ROAD, THYKOODAM, VYTTILA, KOCHI, KERALA-682 019, REPRESENTED BY ITS DIRECTOR, MR.G.RAJAMANI BY ADVS. JOSEPH MARKOSE (SR.) V.ABRAHAM MARKOS(K/354/1975) ABRAHAM JOSEPH MARKOS ALEXANDER JOSEPH MARKOS SHARAD JOSEPH KODANTHARA RESPONDENT/S: 1 THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX INCOME TAX OFFICER, NATIONAL-E-ASSESSMENT CENTRE, NEW DELHI-110 001 2 THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1 (1), COCHIN-682 018 3 COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS ASSESSMENT CENTRE, NEW DELHI-110 001 4 THE PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018 5 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, NATIONAL E-ASSESSMENT CENTRE, NEW DELHI-110 001 6 UNION OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, WP(C) NO. 3225 OF 2022 2 NORTH BLOCK, NEW DELHI-110 001, REPRESENTED BY ITS SECRETARY OTHER PRESENT: ADV.JOSE JOSEPH-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 3225 OF 2022 3 BECHU KURIAN THOMAS, J. ======================== W.P.(C) No. 3225 of 2022 ======================== Dated this the 1st day of February, 2022 J U D G M E N T Petitioner seeks to quash Ext.P3 assessment order and Ext.P11 order issued under Section 220(6) of the Income Tax Act, 1961. Petitioner has also prayed for setting aside the Faceless Appeal Schemes of 2020 and 2021 on the reason that the said schemes do not permit application for stay to be filed. A further relief to consider Ext.P12 stay petition is also sought for. 2. Aggrieved by the assessment order issued against the petitioner for the assessment year 2018-19, an appeal has been preferred by the petitioner before the 3rd respondent. During the pendency of the said appeal, the Assessing Officer directed the petitioner to deposit 20% of the disputed demand for stay of recovery of the balance tax, allegedly due from the petitioner. WP(C) NO. 3225 OF 2022 4 3. The grievance of the petitioner raised in this writ petition arises from a difficulty to move a stay petition before the Faceless Assessment Centre. Absence of a link to upload the stay petition stares at the petitioner to attempt for an interim relief during the pendency of the appeal. Despite filing Ext.P12 stay petition before the 4th respondent, the same cannot be considered by the appellate authority, competent to consider the said stay petition under the present Faceless Appeal regime. 4. This court had already observed in WPC No. 26935/2021 that, denial of an opportunity to file a stay petition in a pending appeal, due to the absence of a link for the assessee to upload such petitions causes prejudice. The right to seek a stay of the impugned order or recovery proceedings pending the appeal is a part of the vested right of appeal. The right to prefer an appeal will not be complete, if there is no opportunity to try for obtaining a stay pending appeal. Circumstances will be myriad, if such WP(C) NO. 3225 OF 2022 5 an opportunity is not granted to a litigant. 5. Since the petitioner has already preferred Ext. P12 stay petition before the 4th respondent, I am of the view that this writ petition can be disposed of enabling the stay petition to be considered in the following manner; i. The 4th respondent shall transmit Ext.P12 stay petition to the 3rd respondent within a period of one month from the date of receipt of a copy of this judgment. ii. Thereafter, on receipt of the stay petition, the 3rd respondent shall consider the application for stay filed by the petitioner, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of the stay petition transmitted from the 4th respondent. iii. Till a decision is taken all coercive proceedings against the petitioner pursuant to Ext.P3 assessment order shall be kept in abeyance. 6. I clarify that the stay petition in Ext.P12 shall be disposed of within an outer limit of two months from the WP(C) NO. 3225 OF 2022 6 date of receipt of a copy of this judgment. The remaining questions raised by the petitioner in the writ petition are left open for consideration at the appropriate time. The writ petition is disposed of. Sd/- BECHU KURIAN THOMAS JUDGE LU WP(C) NO. 3225 OF 2022 7 APPENDIX OF WP(C) 3225/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 08.02.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 09.04.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER DATED 16.04.2021 PASSED BY THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 06.12.2021 IN WPC NO.11389 OF 2021 EXHIBIT P5 TRUE COPY OF THE RECTIFICATION PETITION DATED 13.05.2021 MOVED BY THE PETITIONER BEFORE THE ASSESSING OFFICER EXHIBIT P6 TRUE COPY OF THE ORDER DATED 15.12.2021 OF THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE APPEAL DATED 31.05.2021 FILED BEFORE THE 3RD RESPONDENT EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 08.09.2021 FILED BEFORE THE 1ST RESPONDENT EXHIBIT P9 TRUE COPY OF THE STAY PETITION DATED 12.01.2022 (WITHOUT ANNEXURES)FILED BEFORE THE ASSESSING OFFICER EXHIBIT P10 TRUE COPY OF THE CBDT GUIDELINES DATED 29.02.2016 EXHIBIT P11 TRUE COPY OF THE ORDER DATED 21.01.2022 WP(C) NO. 3225 OF 2022 8 PASSED BY THE 2ND RESPONDENT EXHIBIT P12 TRUE COPY OF THE STAY PETITION DATED 27.01.2022 (WITHOUT ANNEXURE I) FILED BEFORE THE 4TH RESPONDENT EXHIBIT P13 TRUE COPY OF THE FACELESS APPEAL SCHEME, 2020 ISSUED BY NOTIFICATION DATED 25.09.2020 EXHIBIT P14 TRUE COPY OF THE FACELESS APPEAL SCHEME, 2021 ISSUED BY NOTIFICATION DATED 28.12.2021 // True Copy // PA To Judge "