Manath Muhammed Ismail V. Assistant Commissioner of Income Tax, Central Circle 1, Kochi and Commissioner of Income Tax (Appeals)- III, C. R. Building, Is Press Road, Kochi

WP(C)/1075/2024

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The case involves Manath Muhammed Ismail, a real estate broker, who filed a writ petition against the Assistant Commissioner of Income Tax and the Commissioner of Income Tax (Appeals) seeking a mandamus to direct the appellate authority to dispose of his appeals and stay applications related to assessment orders under Section 153C of the Income Tax Act, 1961. The petitioner had shown a significantly lower income in his return compared to the cash receipts noted during a search operation at associated premises. Despite the delay in filing appeals and stay applications, the court did not grant interim relief due to the petitioner's inability to deposit 20% of the assessed tax, which was a prerequisite for staying the tax demand.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 679984 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 10-01-2024
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: NAVANEETH NATH
• Assessee Lawyers: ANIL NAIR; TELMA RAJU
• Keywords: Assessment orders; Delay condonation; Income Tax; Stay Petition; Writ of Mandamus
• Section: 143(2); 153C

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 10TH DAY OF JANUARY 2024 / 20TH POUSHA, 1945 WP(C) NO. 1075 OF 2024 PETITIONER: MANATH MUHAMMED ISMAIL, AGED 74 YEARS, S/O. LATE M. P. AHMED, MANATH PAZHAPURAYIL,KAKKANADU, SEAPORT AIRPORT ROAD,COCHIN, KERALA, PIN – 682030. BY ADVS. SRI. ANIL D. NAIR SMT. TELMA RAJU RESPONDENTS: 1 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, KOCHI, PIN – 682018. 2 COMMISSIONER OF INCOME TAX (APPEALS)- III, C. R. BUILDING, IS PRESS ROAD, KOCHI, PIN – 682036. BY ADV. SRI. NAVANEETH M. NATH – SC – INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1075 OF 2024 2 DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No.1075 of 2024 ------------------------- Dated this the 10th day of January, 2024 JUDGMENT 1. The present writ petition has been filed for a writ of mandamus or direction in the nature of mandamus commanding the 2nd respondent to dispose of Exhibits P-5, P-6, P-7 and P-8 appeals and Exhibits P-9, P-10, P-11 and P-12 stay applications preferred by the petitioner/assessee against the assessment orders in Exhibit P-1 to P-4 passed under Section 153C of the Income Tax Act, 1961 (hereinafter referred to as the IT Act, 1961 for short). 2. The petitioner is a real estate broker. A search was conducted in the business premises of Veekay Group and Archbishop’s House and other associated persons on 26.08.2018. In the return of his income for the assessment year 2016-17, the petitioner had shown an income of Rs. 3,00,000/- only. There were entries in respect of the payments made to the petitioner by the said group and, therefore, a notice under Section 153 C of the IT Act, 1961 was issued and served on the petitioner. In response to the said notice, the petitioner had filed his return of income on 09.12.2020 offering an income of Rs. 6,89,870/-. WP(C) NO. 1075 OF 2024 3 Subsequently, notices under Section 143(2) was issued and served on the petitioner calling for the details of the cash receipts of the petitioner which were reflected in the documents received in the search. After considering the reply and the evidence collected during the search operation, the cash allegedly received by the petitioner was added to his income. 3. The petitioner has approached the appellate authority with a considerable delay of three months along with the application for condoning the delay and stay petition. Now the petitioner has come before this Court to grant interim order regarding the recovery of the tax assessed in the assessment orders which cumulatively comes to Rs. 1,28,57,490/-. This Court enquired from the learned Counsel for the petitioner that whether the petitioner is willing to deposit 20% of the assessed tax so that the remaining amount can be ordered to be stayed till the disposal of the application for condoning the delay and stay petition. However, the learned Counsel for the petitioner submits that the assessee is not in a position to deposit even the 20% of the assessed tax amount. 4. This Court does not exercise parallel jurisdiction with the appellate authority. The petitioner's appeals along with the WP(C) NO. 1075 OF 2024 4 applications for condoning the delay and stay petitions are pending and as the petitioner is not willing to deposit even 20% of the assessed tax, this Court would not like to stay the demand as assessed in the assessment orders in Exhibits P-1 to P-4. Thus, the present writ petition is disposed of with direction to the 2nd respondent to consider and pass appropriate orders in accordance with the law on the applications of the petitioner for condoning the delay as well as the stay petitions expeditiously, preferably within a period of two months. However, it is made clear that this Court has not granted any interim relief to the petitioner. Sd/- DINESH KUMAR SINGH JUDGE Svn WP(C) NO. 1075 OF 2024 5 APPENDIX OF WP(C) 1075/2024 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF ASSESSMENT ORDER DATED 22.06.2021 EXHIBIT P2 TRUE COPY OF ASSESSMENT ORDER DATED 18.06.2021 EXHIBIT P3 TRUE COPY OF ASSESSMENT ORDER DATED 21.06.2021 EXHIBIT P4 TRUE COPY OF ASSESSMENT ORDER DATED 22.06.2021 EXHIBIT P5 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM NO.35 ALONG WITH GROUNDS OF APPEAL FILED BEFORE THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2015-16 EXHIBIT P6 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM NO.35 ALONG WITH GROUNDS OF APPEAL FILED BEFORE THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2016-17 EXHIBIT P7 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM NO.35 ALONG WITH GROUNDS OF APPEAL FILED BEFORE THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2017-18 EXHIBIT P8 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM NO.35 ALONG WITH GROUNDS OF APPEAL FILED BEFORE THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2018-19 EXHIBIT P9 TRUE COPY OF THE PETITION FOR STAY OF DEMAND FILED BEFORE THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2015-16 EXHIBIT P10 TRUE COPY OF THE PETITION FOR STAY OF DEMAND FILED BEFORE THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2016-17 EXHIBIT P11 TRUE COPY OF THE PETITION FOR STAY OF DEMAND FILED BEFORE THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2017-18 EXHIBIT P12 TRUE COPY OF THE PETITION FOR STAY OF DEMAND FILED BEFORE THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2018-19 EXHIBIT P13 TRUE COPY OF NOTICE DATED 05.01.2024 ISSUED BY THE 1ST RESPONDENT "