T.B.KUNHIMAHIN HAJI V. THE ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/28243/2011

AI Insights

The case involves T.B. Kunhimahin Haji, the petitioner, who challenged the enforcement of garnishee proceedings initiated by the Assistant Commissioner of Income Tax, Kozhikode, under Section 226(3) of the Income Tax Act, 1961. The petitioner had filed appeals against several assessment orders and concurrently filed stay petitions regarding these appeals. The main contention was that it was unjust to enforce the garnishee proceedings before the appellate authority could consider the stay petitions. The Income Tax Department argued that the stay petitions were filed much later than the initiation of the garnishee proceedings, thus lacking merit.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 765983 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 31-10-2011
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: ANIL NAIR; J R NAVAZ; NIVEDITA KAMATH
• Keywords: Appeal; Garnishee proceedings; Income tax assessment; Stay petitions
• Section: 226(3)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WP(C).No. 28243 of 2011() ------------------------------------- PETITIONER(S): ------------------------ T.B. KUNHIMAHIN HAJI, PADHOOR HOUSE, THEKKIL P.O., KASARAGOD-671 541. BY ADV. SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A.KAMATH RESPONDENT(S): --------------------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-I, KOZHIKODE.PIN-673 001 2. THE COMMISSIONER OF INCOME TAX (APPEALS-1), ERNAKULAM.PIN-682 078 R1 & R2 BY ADV.SRI.JOSE JOSEPH,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.28243/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2003-04 DATED 29.11.2010 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT. EXT.P2 TRUE COPY OF THE ORDER FOR THE YEAR 2004-05 DATED 31.3.2010 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER FOR THE YEAR 2006-07 DATED 30.6.2010 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT. EXT.P4 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2007-08 DATED 10.12.2010 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT. EXT.P5 TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008-09 DATED 10.12.2010 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT. EXT.P6 TRUE COPY OF THE APPEAL FOR THE YEAR 2003-04 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7 TRUE COPY OF THE APPEAL FOR THE YEAR 2004-05 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P8 TRUE COPY OF THE APPEAL FOR THE YEAR 2006-07 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P9 TRUE COPY OF THE APPEAL FOR THE YEAR 2007-08 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P10 TRUE COPY OF THE APPEAL FOR THE YEAR 2008-09 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P11 TRUE COPY OF THE STAY APPLICATION FOR THE YEAR 2003-2004 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P12 TRUE COPY OF THE STAY APPLICATION FOR THE YEAR 2004-2005 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P13 TRUE COPY OF THE STAY APPLICATION FOR THE YEAR 2006-2007 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P14 TRUE COPY OF THE STAY APPLICATION FOR THE YEAR 2007-2008 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P15 TRUE COPY OF THE STAY APPLICATION FOR THE YEAR 2008-2009 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P16 TRUE COPY OF THE GARNISHEE PROCEEDINGS ISSUED BY THE FIRST RESPONDENT UNDER SECTION 226(3) OF THE INCOME TAX ACT, 1961. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.28243 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2011 J U D G M E N T Against assessment orders and penalty orders under the Income Tax Act, the petitioner has filed Exts.P6 to P10 appeals. Pending appeals, by Ext.P6, the 1st respondent initiated garnishee proceedings under Section 226 (3) of the Income Tax Act, 1961. The petitioner's contention is that, the petitioner has filed stay petitions also in the appeals which are produced as Exts.P11 to P15. The petitioner submits that it is unjust to enforce Ext.P16 proceedings before the appellate authority could consider and pass orders on the stay petitions. 2. The learned Standing Counsel for the Income Tax Department points out that Ext.P16 was issued on 18.02.2010 and the petitioner has filed stay petitions before the appellate authority only in October, 2011. Therefore, there is no merit in the contention raised by the petitioner, is the submission made by the Standing Counsel. W.P.(C)No.28243 of 2011 -2- 3. Having heard both sides, I dispose of this writ petition with the following directions: The 2nd respondent shall consider and pass orders on Exts.P11 to P15 stay petitions, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Till then, status quo as on today shall be maintained in respect of Ext.P16 order. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/ "