After Some Arguments, Learned Counsel For v. Wp(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 5 DAY OF OCTOBER 2023 / 13TH ASWINA, 1945 WP(C) NO. 32712 OF 2023 PETITIONER: PULIYAMMAKKAL MATHAI SEBASTIANAGED 66 YEARS PULIYAMMAKKAL HOUSE, CHEERAL P.O., SULTHAN BATHERY VIA, WAYANAD DISTRICT, PIN – 673 592. BY ADVS.G.KEERTHIVASLAKSHMI DAS RESPONDENTS: 1INCOME TAX OFFICER AYAKAR BHAVAN, KALPETTA, PIN – 673 122. 2THE ASSESSMENT UNIT, INCOME TAX DEPARTMENT REPRESENTED BY INCOME TAX OFFICER , AYAKAR BHAVAN, KALPETTA, PIN – 673 122.REPRESENTED BY INCOME TAX OFFICER , AYAKAR BHAVAN, KALPETTA, PIN – 673 122. 3THE COMMISSIONER OF INCOME TAX (APPEALS)AYAKAR BHAVAN, KOZHIKODE DISTRICT, PIN – 673 001.AYAKAR BHAVAN, KOZHIKODE DISTRICT, PIN – 673 001. 4NATIONAL FACELESS APPEAL CENTREC BLOCK, SPM CIVIC CENTRE, NEW DELHI - 110001, REPRESENTED BY PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (NFAC),PIN – 110 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: DINESH KUMAR SINGH, J. -------------------------------------------- WP(C) No. 32712 of 2023 -------------------------------------------- Dated this the 5[th] day of October, 2023 J U D G M E N T 1.The present writ petition has been filedimpugning Ext.P4 order dated 27.06.2023 and directthe 1[st]respondent to reconsider Ext.P3 stayapplication. 2.After some arguments, Learned Counsel for the petitioner submitted that an appeal against theassessment order is pending before the appellateauthority, i.e., 3[rd] / 4[th] respondent. 3.The petitioner is granted one week time to filea stay application before the appellate authorityconcerned. The appellate authority is directed toconsider the said application on its merit after takinginto consideration of Ext.P5 to Ext.P7 OfficeMemorandums issued by Central Board of Direct Taxesas well as the Judgment of the Supreme Court in thecase of Principal Commissioner of Income Tax Vs. LG Electronics India Private Limited (2018) wherein it has been observed as under; “2. Having heard Shri.Vikramjit Banerjee,learned ASG appearing on behalf of theappellant, and giving credence to the fact thathe has argued before us that the administrativecircular will not operate as a fetter on theCommissioner since it is a quasi-judicialauthority, we only need to clarify that in allcases like the present, it will be open to theauthorities, on the facts of individual cases, togrant deposit orders of a lesser amount than20%, pending appeal.” 4.With aforesaid, the present writ petitionstands disposed of. Sd/- DINESH KUMAR SINGHJUDGE APPENDIX OF WP(C) 32712/2023 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE DATED 8.9.2022 Exhibit P2TRUE COPY OF THE APPEAL FILED BEFORE THE 3RD RESPONDENT HEREIN DATED 8.10.2022RESPONDENT HEREIN DATED 8.10.2022 Exhibit P3TRUE COPY OF THE STAY APPLICATION DATED 27.6.202327.6.2023 Exhibit P4TRUE COPY OF THE ORDER DISMISSING THE STAY APPLICATION DATED 27.6.2023APPLICATION DATED 27.6.2023 Exhibit P5TRUE COPY OF THE OFFICE MEMORANDUM DATED 31.7.2017 ISSUED BY THE CENTRAL BOARD OF DIRECTTAXES31.7.2017 ISSUED BY THE CENTRAL BOARD OF DIRECTTAXES Exhibit P6TRUE COPY OF THE OFFICE MEMORANDUM DATED 29.2.2016 ISSUED BY THE CENTRAL BOARD OF DIRECTTAXES29.2.2016 ISSUED BY THE CENTRAL BOARD OF DIRECTTAXES Exhibit P7 TRUE COPY OF THE INSTRUCTION NO.1914