KANNUR BUILDING MATERIALS CO-OPERATIVE SOCIETY LTD NO. C-1741 V. THE INCOME TAX OFFICER

WP(C)/5100/2022

AI Insights

The case involves the Kannur Building Materials Co-operative Society Ltd, which challenged an order under Section 201 of the Income Tax Act, 1961, concerning the assessment years 2014-2015 and 2015-2016. The petitioner had filed an appeal but did not initially file for a stay. The Income Tax Officer required a 20% deposit of the total demand for considering a stay. The petitioner argued that the new Faceless Appeal regime did not provide a mechanism to file a stay petition, which prejudiced their rights. The court recognized the lack of access to file interim applications as a violation of the fundamental right to access a court and directed the Income Tax Department to rectify this by providing an electronic link for such applications.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 686733 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 16-02-2022
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: C A JOJO JOSEPH
• Keywords: Faceless Appeal; Interim application; Stay Petition; Access to Court
• Section: 201

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 WP(C) NO. 5100 OF 2022 PETITIONER : KANNUR BUILDING MATERIALS CO-OPERATIVE SOCIETY LTD NO. C-1741, REPRESENTED BY ITS SECRETARY, PAPPINISSERY P.O., KANNUR DISTRICT – 670 561 BY ADVS. C.A.JOJO MATHEWS JOSEPH RESPONDENTS : 1. THE INCOME TAX OFFICER, TDS WARD, KANNUR RANGE, AAYANKAAR, BHAVAN KANNOTHUMCHAL, CHOVVA P.O., KANNUR, PIN – 670 006 2. COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE, NEW DELHI – 110 001 3. THE PRINCIPAL COMMISSIONER OF INCOME TAX, OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, I.S.PRESS ROAD, KOCHI – 682 018 BY SRI.CHRISTOPHER ABRAHAM, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 5100 OF 2022 2 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C) No.5100 of 2022 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 16th day of February, 2022 JUDGMENT Challenging an order issued under Section 201 of the Income Tax Act, 1961 for the assessment years 2014-2015 and 2015-2016, petitioner has preferred an appeal before the 2nd respondent as evidenced by Ext.P3. At the time the appeal was preferred, petitioner had not filed any application for stay. In the meantime, petitioner has been directed to deposit an amount equivalent to 20% of the total demand as per Ext.P4 for considering the stay by the assessing officer. 2. The grievance raised in the writ petition is that petitioner is unable to file an application for stay before the Appellate Authority, who alone, according to him is competent to grant stay of the order impugned in appeal. It is further pointed out that after the Faceless Appeal regime was brought in, there is a lack of opportunity to prefer a stay petition in a pending appeal. Absence of a link to WP(C) NO. 5100 OF 2022 3 upload the stay petition is prejudicial to the interests of the assessees. 3. I have heard Sri.C.A.Jojo, the learned counsel for the petitioner as well as Sri.Christopher Abraham, the learned Standing Counsel for the Income Tax. 4. The requirement to have a link to move applications in pending appeals is a facet of the right of access to a court of law. Absence of such a link is contrary to the fundamental rights of every individual. It is essential that the Income Tax Department, especially the Faceless Appeal Centre make provisions for providing electronic link to the appellants to file necessary interim applications, so that litigants get proper access to a court of law for redressal of their grievances. The right of access to a court of law available to a litigant cannot be deprived by an absence of link to upload interim applications. 5. In such a view of the matter, I direct the 2nd respondent to make available within a period of four weeks from the date of receipt of a copy of this judgment a link to upload the stay petitions to be filed by the petitioner for filing a stay petition in the pending appeal. If after making available such a link, the petitioner uploads any application for stay as contemplated under law, within a WP(C) NO. 5100 OF 2022 4 period of two weeks thereafter, the said application shall be considered and disposed of by the 2nd respondent, within an outer period of two months from the date of uploading of the stay petition. Till such time, all recovery proceedings pursuant to Ext.P1 shall be kept in abeyance. The writ petition is allowed as above. Sd/- BECHU KURIAN THOMAS, JUDGE RKM WP(C) NO. 5100 OF 2022 5 APPENDIX PETITIONER'S EXHIBITS : P1 : TRUE COPY OF THE ORDER U/S 201(1) AND 201(A) DATED 30.03.2021 ISSUED BY THE FIRST RESPONDENT. P2 : TRUE COPY OF THE DEMAND NOTICE IN TAN : CHNK05048B DATED 30.03.2021 ISSUED BY THE FIRST RESPONDENT. P3 : TRUE COPY OF THE APPEAL BEFORE THE 2ND RESPONDENT DATED 01.05.2021. P4 : TRUE COPY OF THE NOTICE OF DEMAND OF 20% DATED 31.08.2021 ISSUED BY THE FIRST RESPONDENT. P5: TRUE COPY OF THE REVIEW PETITION BEFORE THE 3RD RESPONDENT DATED 23.09.2021. P6 : TRUE COPY OF THE ORDER DATED 17.12.2021 ISSUED BY THE 4TH RESPONDENT. "