N. SHEELA V. THE ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/10170/2020

AI Insights

The case involves N. Sheela, the proprietrix of Swathi Exports, who challenged an order (Ext.P16) under Article 226 of the Constitution of India. The order required her to pay 20% of the demand amount as a precondition for entertaining her appeal against a revised assessment under the Income Tax Act. The petitioner, engaged in exporting cashew kennels, argued that the revised assessment was erroneous and illegal. The court, referencing a previous judgment (WA No.1536/19), found the demand for a precondition payment to appeal unjust and set aside the order, remitting the case back for a decision on merits without such a financial barrier.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 691756 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 28-05-2020
• Assessment Year: misc
• Other Referred Cases: WA No.1536/19, WP(C)NO.21301 OF 2018, CONTEMPT CASE(CIVIL) NO.486/2019, CONTEMPT CASE (CIVIL) NO.486/2019
• Laws Referred To: Income Tax Act, 1961, Article 226 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM; THUSHARA JAMES
• Assessee Lawyers: N D PREMACHANDRAN; D AJITHKUMAR
• Keywords: Appeal; Assessee; Extra-ordinary jurisdiction; Income Tax Return; Revised Assessment; Stay Application; Demand amount; Exporting of cashew kennels
• Section: 131

Judgement Text

"WP(C).No.10170 OF 2020(U) 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942 WP(C).No.10170 OF 2020(U) PETITIONER/S: N. SHEELA PROPRIETRIX, SWATHI EXPORTS, MUNDAKKAL, KOLLAM- 691001 BY ADVS. SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1, AYAKAR BHAVAN, KARBALA JUNCTION, KOLLAM- 691001 2 THE PRINCIPAL COMMISSIONER, INCOME TAX, OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KOWDIAR.P.O, THIRUVANANTHAPURAM-695003 3 THE JOINT COMMISSIONER OF INCOME TAX OFFICE OF THE JOINT COMMISSIONER, KARBALA JUNCTION, KOLLAM-691001 OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC GP DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.10170 OF 2020(U) 2 JUDGMENT Petitioner in the instant case has invoked extra ordinary jurisdiction of this court under Article 226 of the Constitution of India challenging Ext.P16, whereby for entertaining the appeal preferred against the revised assessment, petitioner has been called upon to pay 20% of the demand amount. The facts which emanate from the pleadings are: Petitioner is engaged in exporting of cashew kennels and he is an assessee under the Income Tax Act. He filed Income Tax Return before the Authorities which was found to be under scrutiny resulting into the reassessment order Ext.P9. Learned Counsel for the petitioner submits that the demand raised in the revised assessment is erroneous and illegal. 2. Challenging the aforementioned assessment order petitioner preferred appeal before the 1st respondent along with a stay application. 3. Learned Counsel for the petitioner submits that petitioner vide impugned order Ext.P16, has been called WP(C).No.10170 OF 2020(U) 3 upon to pay 20% of the assessed amount for the purpose of adjudication of the appeal on merits. It is also contended that the accounts of the petitioner is also attached and he is in a pitiable condition. 4. Issue notice before admission. 5. Sri.Christopher Abraham accepts notice on behalf of the income tax authorities. He submits that the income tax authorities would not be averse in deciding the interim application if any such prayer is made by the petitioner. 6. Having heard learned Counsel for the parties and appraised the paper book, without commenting on the merits of the matter, I dispose of the writ petition with the following directions: 1. the impugned order, in view of judgment of Division Bench of this court in WA No.1536/19 is set aside. 2. The matter is remitted back to the 1st respondent to decide the appeal on merits within a period of three months, without asking for 20% of the demanded amount, after affording an opportunity of WP(C).No.10170 OF 2020(U) 4 hearing to the petitioner, including revenue by passing a reasonable and speaking order. Sd/- AMIT RAWAL JUDGE JM/ WP(C).No.10170 OF 2020(U) 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A COPY OF THE JUDGMENT IN WP(C)NO.21301 OF 2018 DATED 27.06.2018 EXHIBIT P2 A COPY OF ORDER IN CONTEMPT CASE(CIVIL) NO.486/2019 DATED 31.05.2019 OF THIS HON'BLE COURT EXHIBIT P3 A COPY OF THE JUDGMENT IN CONTEMPT CASE (CIVIL) NO.486/2019 DATED 1.07.2019 EXHIBIT P4 A COPY OF NOTICE DATED 27.03.2019 OF THE 1ST RESPONDENT EXHIBIT P5 A COPY OF THE REPLY DATED 24.04.2019 GIVEN BY THE PETITIONER TO EXT.P4 EXHIBIT P6 A COPY OF THE LEDGER SHEET OF THE PETITIONER'S FATHER'S COMPANY RAJAN CASHEW COMPANY EXHIBIT P7 A COPY OF THE LEDGER STATEMENT ANNEXED TO THE RETURN FILED BY THE PETITIONER EXHIBIT P8 A COPY OF THE RETURN IN THE ANNEXURES EXHIBIT P9 A COPY OF THE ASSESSMENT ORDER DATED 18.11.2019 FOR THE YEAR 2013-2014 EXHIBIT P10 A COPY OF THE NOTICE OF DEMAND DATED 18.11.2019 UNDER SECTION OF THE INCOME TAX AT, 1961 EXHIBIT P11 A COPY OF THE APPEAL MEMORANDUM DATED 24.12.2019 EXHIBIT P12 A COPY OF THE LETTER DATED 16.1.2020 OF THE 1ST RESPONDENT EXHIBIT P13 A COPY OF THE LETTER DATED 28.02.2020 ADDRESSED TO THE PRINCIPAL COMMISSIONER OF THE INCOME TAX WP(C).No.10170 OF 2020(U) 6 P14: COPY OF THE LETTER DATED 23.1.2020 EXT.P15: COPY OF THE SUMMONS ISSUED UNDER SECTION 131 OF THE INCOME TAX ACT DATED 25.2.2020. EXT.P16: COPY OF THE LETTER DATED 26.2.2020 OF THE 1ST RESPONDENT. EXT.P17: COPY OF THE COMMUNICATION DATED 29.2.2020 OF THE BANK EXT.P18: COPY OF THE DECISION OF THE HON'BLE SUPREME COURT REPORTED IN (2018 12 SCC 281 "