KANJIRAMUKALEL ABDURAHIMAN ABDULMANAF, V. THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/19691/2022

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The case involves Kanjiramukalel Abdulrahiman Abdulmanaf, the petitioner, who is an income tax assessee and the sole proprietor of a retail business trading in glass products. The petitioner challenged the reopening of his income tax assessment for the year 2017-18 by the respondents, which was done without proper notice to him, as the notice was sent to the email of his former accountant. The petitioner filed a return (Ext.P1) and an appeal (Ext.P4) against the assessment order (Ext.P2) and a stay petition (Ext.P5) against the demand for payment based on the assessment order. The court found that the appeal and stay petition should be considered before any coercive action is taken.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 764180 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 17-06-2022
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: JOSEPH MARKOSE; ABRAHAM MARKOS; ISAAC ALEXANDER JOSEPH MARKOS; SHARAD KODANTHARA
• Keywords: Coercive Action; Income tax assessment; Statutory Appeal; Stay of recovery
• Section: 147; 148; 144B

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 WP(C) NO. 19691 OF 2022 PETITIONER: KANJIRAMUKALEL ABDULRAHIMAN ABDULMANAF, AGED 44 YEARS KANJIRAMUKALEL HOUSE, PALLARIMANGALAM P.O. KOTHAMANGALAM-686671 ERNAKULAM DISTRICT, KERALA BY ADVS. JOSEPH MARKOSE (SR.) ABRAHAM JOSEPH MARKOS ISAAC THOMAS ALEXANDER JOSEPH MARKOS SHARAD JOSEPH KODANTHARA RESPONDENTS: 1 THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX INCOME TAX OFFICER, NATIONAL E-ASSESSMENT CENTRE, NEW DELHI-110001. 2 THE INCOME TAX OFFICER, THE INCOME TAX OFFICER, WARD-1, TEMPLE ROAD THODUPUZHA -685584. 3 THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL SCHEME, NEW DELHI-110001. 4 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX NATIONAL E-ASSESSMENT CENTRE, NEW DELHI-110001. BY ADV JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.19691/2022 : 2 : N. NAGARESH, J. ````````````````````````````````````````````````````````````` W.P.(C) No.19691 of 2022 ````````````````````````````````````````````````````````````` Dated this the 17th day of June, 2022 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is an income tax assessee, is before this Court seeking to quash Ext.P2 Assessment Order dated 16.03.2022 and P8 notice dated 26.04.2022. The petitioner also seeks stay of recovery of the amount demanded under Ext.P2 Assessment Order. 2. The petitioner states that he is the sole Proprietor of a business of trading in glass products in retail. The respondents reopened income tax assessment of the petitioner for the year 2017–'18 invoking Section 147 read with Section 148 and 144B of the Income Tax Act, 1961. Notice in respect of the proceedings was sent to the e-mail W.P.(C) No.19691/2022 : 3 : ID of the former Accountant of the petitioner. The petitioner was not served with any notice. 3. When the petitioner came to know about the Section 148 notice in the year 2022, the petitioner submitted Ext.P1 Return dated 01.03.2022. The respondents ignored Ext.P1 and sent a show-cause notice on 10.03.2022. The petitioner was given only four days time to respond. Even before the petitioner could respond, Ext.P2 Assessment Order was passed on 16.03.2022. 4. The petitioner filed Ext.P4 appeal dated 10.04.2022 before the 3rd respondent-Commissioner of Income Tax (Appeals), National Faceless Appeal Scheme. The petitioner also filed Ext.P5 stay petition. No decision has been taken on the stay petition or appeal preferred by the petitioner. Pending disposal of the appeal, the 2nd respondent has demanded payment of 20% of the disputed demand for granting stay till disposal of the appeal, relying on the guidelines issued by the Central Board of Direct Taxes. The petitioner is before this Court aggrieved by Ext.P8 notice. W.P.(C) No.19691/2022 : 4 : 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents. 6. Against Ext.P2 Assessment Order dated 16.03.2022, the petitioner has preferred Ext.P4 appeal invoking the provisions of Rule 45 of the Income Tax Rules. The petitioner has also preferred Ext.P5 stay petition. The appeal filed by the petitioner being of a statutory nature, the Appellate Authority is bound to consider the appeal within a reasonable time. 7. This Court is of the view that when the petitioner has preferred statutory appeal along with a stay petition, during the pendency of the said appeal and stay petition, it will be harsh and unjust to take coercive action against the petitioner. In that view of the matter, the writ petition is disposed of directing the 3rd respondent to consider Ext.P5 stay petition filed by the petitioner and pass appropriate orders thereon within a period of three months. The W.P.(C) No.19691/2022 : 5 : respondents shall not take any coercive proceedings against the petitioner based on Ext.P2 Assessment Order or Ext.P8 notice, till a decision is taken by the 3rd respondent on Ext.P5 stay petition. Sd/- N. NAGARESH, JUDGE aks/06.07.2022 W.P.(C) No.19691/2022 : 6 : APPENDIX OF WP(C) 19691/2022 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF RETURN DATED 1.3.2022 FILED BY THE PETITIONER Exhibit P2 TRUE COPY OF ASSESSMENT ORDER DATED 16.03.2022, COMPUTATION SHEET NOTICE OF DEMAND ISSUED BY THE 1ST RESPONDENT Exhibit P3 TRUE COPY OF THE TRADING AND PROFIT & LOSS ACCOUNT FOR THE YEAR 2017-18 Exhibit P4 TRUE COPY OF THE APPEAL DATED 10.04.2022 FILED BEFORE THE 3RD RESPONDENT Exhibit P5 TRUE COPY OF THE STAY PETITION DATED 09.04.2022 FILED BEFORE THE 3RD RESPONDENT Exhibit P6 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 10.04.2022 Exhibit P7 TRUE COPY OF THE APPLICATION DATED 14.04.2022 SUBMITTED BEFORE THE 2ND RESPONDENT Exhibit P8 TRUE COPY OF THE NOTICE DATED 26.04.2022 ISSUED BY THE 2ND RESPONDENT "