Jacob Thomas V. Assistant Commissioner of Income Tax Circle 1, Thiruvalla, Pathanamthitta and Commissioner of Income Tax (Appeals) National Faceless Assessment Centre, New Delhi

WP(C)/40326/2023

AI Insights

The case involves Jacob Thomas, the petitioner, who is contesting an order from the Commissioner of Income Tax (Appeals), NFAC, regarding a conditional stay on an income tax demand. This is the second round of litigation for the petitioner, having previously sought a direction for the Commissioner to consider and dispose of his appeal and stay petition against an assessment order. The High Court had earlier directed the Commissioner to decide on the stay petition expeditiously. However, the subsequent order did not provide independent reasons for the conditional stay, leading to the current writ petition to challenge this lack of reasoning and adherence to procedural fairness.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 681388 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 04-12-2023
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JO JOSEPH
• Assessee Lawyers: ALEXANDER MARKOS; V MARKOS; MARKOS JOSEPH; MARKOS THOMAS; SHARAD KODANTHARA; JOHN VITHAYATHIL; AIBEL SIBY
• Keywords: Assessment Order; Conditional stay; Income Tax; Interim Stay

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 4TH DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 WP(C) NO. 40326 OF 2023 PETITIONER: JACOB THOMAS AGED 78 YEARS 1- MULAMOOTIL, KOZHENCHERRY, PATHANAMTHITTA, KERALA, PIN – 689641 BY ADVS. ALEXANDER JOSEPH MARKOS V.ABRAHAM MARKOS ABRAHAM JOSEPH MARKOS ISAAC THOMAS SHARAD JOSEPH KODANTHARA JOHN VITHAYATHIL AIBEL MATHEW SIBY RESPONDENTS: 1 ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1, THIRUVALLA, PATHANAMTHITTA, PIN – 689641 2 COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS ASSESSMENT CENTRE, NEW DELHI, PIN – 110001 BY SRI. JOSE JOSEPH, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P .(C.) No.40326/2023 2 JUDGMENT This is the second round of litigation before this Court by the petitioner/assessee. Earlier, the assessee had approached this Court by filing W.P.(C.) No. 23096/2023 for a direction to the Commissioner of Income Tax (Appeals), National Faceless Assessment Centre (NFAC), New Delhi to consider and dispose of appeal and stay petition instituted against the assessment order. This Court disposed of the said writ petition vide judgment dated 19.07.2023 with a direction to the Commissioner of Income Tax (Appeals) to consider and dispose of Ext.P3 stay petition, in accordance with law and as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of that judgment, after affording an opportunity of being heard to the assessee. It was further stated that if the Commissioner of Income Tax (Appeals) proposed to pass conditional order of stay, he should assign reasons for the same. W.P .(C.) No.40326/2023 3 2. In compliance of the said judgment dated 19.07.2023, the petitioner's stay application has been decided vide Ext.P5 impugned order. Though the Commissioner of Income Tax (Appeals), (NFAC) has taken note of the direction issued by this Court in its judgment dated 19.07.2023, however, in the impugned order no reason has been assigned for conditional stay of 80% of the demand, in case the petitioner deposits 20% of the demand. In fact the Commissioner of Income Tax (Appeals), NFAC has just followed the Circular in this respect issued by the Central Board of Direct Tax. The Commissioner of Income Tax (Appeals) has not assigned any independent reason for not granting the interim protection to the petitioner. In fact, he has not driven beyond the Circular issued in this respect. If an assessee, during the pendency of the appeal, deposits 20% of the demand, there is an automatic stay and if the Appellate Authority just following the Circular, there is no W.P .(C.) No.40326/2023 4 adjudication on the stay application. Such a course will defeat the adjudicatory process of the interim stay applications. 3. In view thereof, I allow this writ petition and set aside Ext.P5 order dated 22.11.2023 passed by the second respondent and remand the matter back to the second respondent to pass fresh orders, in accordance with law, after assigning reasons in support of the order passed by them. Needless to say, the petitioner should be afforded an opportunity of hearing before the order is passed on the stay petition. The writ petition is disposed of as above. Sd/- DINESH KUMAR SINGH JUDGE DCS/07.12.2023 W.P .(C.) No.40326/2023 5 APPENDIX PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ASSESSMENT ORDER DATED 24/12/2019 EXHIBIT P2 TRUE COPY OF APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 13/1/2020 EXHIBIT P3 STAY PETITION FILED BEFORE THE 2ND RESPONDENT DATED 09/01/2020 EXHIBIT P3(A) STAY PETITION FILED BEFORE THE 2ND RESPONDENT DATED 10/02/2020 EXHIBIT P4 JUDGMENT DATED 19.07.2023 IN W.P.(C) NO. 23069 OF 2023 EXHIBIT P5 ORDER DATED 22.11.2023 ISSUED BY THE 2ND RESPONDENT "