Shri Subin Abdul Rasheed V. The Assistant Commissioner of Income Tax, Circle-1(1) and The Commissioner of Income Tax (Appeals) and The Commissioner of Income Tax

WP(C)/24138/2018

AI Insights

The case involves Shri Subin Abdul Rasheed, the petitioner, who challenged the non-action of the Assistant Commissioner of Income Tax (1st respondent) on his stay application regarding recovery proceedings following an assessment order for the assessment year 2013-14. The petitioner had filed an appeal against the assessment order and had complied with the statutory mandate by depositing 15% of the disputed tax. However, the pre-deposit requirement was later increased to 20% after the filing of his appeal. The petitioner contended that the 1st respondent should consider his stay application based on the law as it existed at the time of his appeal. The court agreed with the petitioner, emphasizing that the statutory provisions applicable at the time of the appeal should govern the consideration of the stay application.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 814678 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 23-07-2018
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: K M V PANDALAI; CHRISTOPHER ABRAHAM
• Assessee Lawyers: T M SREEDHARAN; V P NARAYANAN; R KRISHNAN
• Keywords: Assessment Order; Coercive Recovery; Income Tax; Pre-deposit; Stay Application
• Section: 143(3)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940 WP(C).No. 24138 of 2018 ----------------------- PETITIONER: ---------- SHRI SUBIN ABDUL RASHEED, S/O. ABDUL RASHEED, \"HEERA\", GOLF LINKS, TKV ROAD, KOWDIAR.P.O., THIRUVANANTHAPURAM- 695 003. BY SRI.T.M.SREEDHARAN (SENIOR ADVOCATE) ADVS. SRI.V.P.NARAYANAN SRI.R.BHASKARA KRISHNAN RESPONDENT(S): -------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1(1),AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM - 695 003. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM- 695 003. 3. THE COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM- 695 003. BY SRI.K.M.V. PANDALAI, SC SRI. ADV.CHRISTOPHER ABRAHAM, CG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 24138 of 2018 (N) -------------------------- APPENDIX PETITIONERS' EXHIBITS: ---------------------- EXHIBIT P1 TRUE COPY OF THE INCOME TAX RETURN VERIFICATION FORM DATED 26.4.2014 FOR THE ASST.YEAR 2013-14 FILED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 28.12.2016 ALONG WITH THE DEMAND NOTICE PASSED BY THE 1ST RESPONDENT FOR THE ASST. YEAR 2013-14. EXHIBIT P3 TRUE COPY OF MEMORANDUM OF APPEAL DATED 27.1.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR 2013-14. EXHIBIT P4 TRUE COPY OF THE STAY APPLICATION DATED 6.2.2017 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P4(A) TRUE COPY OF THE CHALLAN DATED 16.2.2017 BEING PROOF OF 15 % OF THE DEMAND REMITTED BY THE PETITIONER. EXHIBIT P4(B) TRUE COPY OF THE CHALLAN DATED 14.3.2017 BEING PROOF OF 15 % OF THE DEMAND REMITTED BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE CIRCULAR DATED 3.3.2016 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, DELHI. RESPONDENTS' EXHIBITS: NIL --------------------- /TRUE COPY/ P.S.TO JUDGE mbr/ 24.07.2018. DAMA SESHADRI NAIDU, J. ============================================== W.P.(C). No. 24138 of 2018 (N) ======================================================= Dated this the 23rd day of July, 2018 JUDGMENT The petitioner faced Ext.P2 assessment order and the consequent coercive recovery proceedings. She filed Ext.P3 appeal before the 2nd respondent. In March, 2017, she deposited 15% of the disputed tax, complying with the statutory mandate existing then. She also filed Ext.P4 application before the 1st respondent to stay the recovery proceedings until the Ext.P3 appeal is disposed of. Aggrieved that the 1st respondent has not acted on Ext.P4, the petitioner has filed this writ petition. 2. In response to the submissions made by the petitioner's counsel, the Standing Counsel submits that now the pre- deposit stands enhanced to 20% from 31st July, 2017. According to him, the petitioner paid only 15%. So unless the petitioner pays the balance 5%, the 1st respondent -2- W.P.(C). No. 24138 of 2018 (N) may not entertain Ext.P4. 3. As seen from the record, the petitioner filed the appeal in the beginning of 2017 and remitted 15% as a per- condition, in March 2017. The Standing Counsel does not dispute that the change in the amount to be deposited was effected only on 31st July, 2017. I reckon, under these circumstances, the 1st respondent ought to consider the Ext.P4 in the light of the statutory provisions existing then, rather than now. 4. So I dispose of the writ petition, holding that the 1st respondent will consider the petitioner's Ext.P4 application and pass orders according to law. Until the 1st respondent considers Ext.P4, the respondents will defer coercive steps. Sd/- DAMA SESHADRI NAIDU JUDGE das 23.07.2018 "