KUTHUBUDHEEN V. THE INCOME TAX OFFICER,

WP(C)/10400/2020

AI Insights

The case involves Kuthubudheen, an individual assessee, who challenged an order by the Commissioner of Income Tax (Appeals) regarding a stay application linked to an assessment order for the year 2017-18. The petitioner argued that the stay application was disposed of without a hearing and imposed a condition of depositing 20% of the demand, contrary to a previous Division Bench judgment which stated such conditions should not be imposed without a hearing. The Income Tax representative contended that the petitioner did not appear before the authority, necessitating the decision based on the existing circular. The High Court found that the authorities did not adhere to the legal precedent and directed compliance with the procedural requirements.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 753384 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 27-05-2020
• Assessment Year: misc
• Other Referred Cases: W.A No.1529 of 2019
• Laws Referred To: Income Tax Act, Article 226 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: HARISANKAR MENON; MEERA MENON
• Keywords: Assessment Order; Income Tax; Opportunity of Hearing; Stay Application
• Section: 226

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942 WP(C).No.10400 OF 2020(Y) PETITIONER/S: KUTHUBUDHEEN KALODI HOUSE, PARAMMAL, CHERUSHOLA P.O, MALAPPURAM- 676 510 BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 THE INCOME TAX OFFICER, WARD 1 AND TPS, INCOME TAX OFFICE,NO.20/1240, TARIFF BAZAR, TOWN HALLROAD,TIRUR, MALAPPURAM-676101 2 THE COMMISSIONER OF INCOME TAX (APPEALS) AAYAKAR BHAVAN, MANNANCHIRA, KOZHIKODE-673 001 OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.10400 OF 2020(Y) 2 JUDGMENT The petitioner, an individual assessee under the Income Tax Act has approached this Court under Article 226 of the Constitution of India challenging the order dated 20.03.2020 Ext.P4, whereby the interim application filed along with the appeal preferred against the assessment order for the assessment years 2017-18 dated 28.11.2019, has been disposed of without affording opportunity of hearing subject to the condition of depositing 20% of demand. 2. Against the assessment order, Ext.P1 dated 28.11.2019, pertaining to the assessment year 2017-18, petitioner preferred an appeal and stay application Exts.P2 and P3. The learned counsel appearing on behalf of the petitioner submits that the assessment order was challenged on various grounds taken in the appeal but fact of the matter is that though the petitioner had sought the indulgence of the Commissioner of Income Tax for adjournment, despite that in the absence of the petitioner, the stay application has been disposed of subject to the WP(C).No.10400 OF 2020(Y) 3 condition as noticed above. In support of his submission, he relies upon the Division Bench judgment of this Court in W.A No.1529 of 2019, whereby it is held that the circular dated 31.07.2017 issued by Income Tax Department do not have any binding effect and there is no such provision in the statute. 3. Issue notice before admission. Sri.Christopher Abraham accepts notice on behalf of the Income Tax. He submits that the petitioner did not appear before the authority dealing with the same and no other option but to dispose of the same, by relying upon the circular, referred above. 4. I have heard the learned counsel for the parties and appraised the paper book. The facts as noticed above are not in dispute. Against the assessment order, the appeal and stay application have been referred. 5. The Division Bench of this Court after having noticed the circular, ibid, remanded the matter to the Income Tax Authority to consider and decide the stay application, in accordance with law without calling upon the assessee to comply with the condition of deposit of 20% of WP(C).No.10400 OF 2020(Y) 4 demanded amount. The direction in the aforementioned judgment is still in force and has not been set aside so far. It is intriguing that either the Assessing Authorities while exercising the powers under 226 of Constitution of India or the Appellate authority, the Commissioner of Income Tax are not adhering to the directions passed by the division Bench of this Court and have been passing the orders of such nature compelling the assessee to approach this Court. I request Sri.Christopher Abraham to sensitize the officers regarding the directions contained in the Division Bench that the assessees are not unnecessarily compelled to approach this Court without any fault. This Court in Sanguine of the fact that the aforementioned directions henceforth onwards would be complied with by the authorities in letter and spirit. The order impugned leaves no manner of doubt that the stay application has been dismissed in the absence of the assessee or representative with the imposition of condition. In view of what has been noticed, the impugned order Ext.P4 dated 20.03.2020 is not sustainable and hereby set aside. The writ petition stands allowed. The matter is remitted to the Commissioner WP(C).No.10400 OF 2020(Y) 5 of Income Tax to decide the stay application as expeditiously, in accordance with law after affording an opportunity of hearing to the petitioner and the representative of the Revenue. Let this exercise be undertaken within a period of 45 days from the date of receipt of a copy of this judgment. Till such time, the demand raised is ordered to be kept in abeyance. It is made clear that the interim order would remain in force till the adjudication of the stay application. Sd/- AMIT RAWAL JUDGE nak WP(C).No.10400 OF 2020(Y) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 EXHIBIT P2 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT 2017-18. EXHIBIT P3 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. "