By Advs.harisankar v. Menonk.krishna, Meera V.menonparvathy Menon, R.sreejith

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 12 DAY OF DECEMBER 2023 / 21ST AGRAHAYANA,1945 WA NO. 2126 OF 2023 AGAINST THE JUDGMENT DATED 29.11.2023 IN WP(C) 39353/2023 OFHIGH COURT OF KERALA APPELLANT/PETITIONER: ATMA BODHODAYA SANGHAM SREE SUBHANANDA TRUST 1, CHERUKOL, MAVELIKKARA, ALAPPUZHA DISTRICT, REPRESENTED BY ITS SECRETARY, SWAMI GEETHANANDAN, PIN - 690104 BY ADVS.HARISANKAR V. MENONK.KRISHNA, MEERA V.MENONPARVATHY MENON, R.SREEJITH RESPONDENTS/RESPONDENTS: 1THE INCOME TAX OFFICEREXEMPTION WARD - ALAPPUZHA, AAYAKAR BHAVAN, ALAPPUZHA, PIN - 6880112THE PRINCIPAL COMMISSIONERINCOME TAX DEPARTMENT, C.R. BUILDING,I.S. PRESS ROAD, ERNAKULAM, KOCHI, PIN - 6820183CENTRALIZED PROCESSING CENTER1ST FLOOR, BERATENAAGRAHARA BEGUR, HOSUR ROAD, UTTARAHALLIHOBLI, BENGALURU, PIN - 560100 W.A.No.2126 of 2023 -:2:-4COMMISSIONER OF INCOME TAX (APPEALS)NATIONAL FACELESS APPEAL CENTRE, DELHI, PIN - 110001 5THE ASST. COMMISSIONER OF INCOME TAX EXEMPTION CIRCLE,AAYAKAR BHAVAN, KAWDIAR P.O.,THIRUVANANTHAPURAM, PIN – 695003SC SRI. JOSE JOSEPH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON12.12.2023, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: J U D G M E N T Dr. A.K.Jayasankaran Nambiar, J. The petitioner in WP(C).No. 39353 of 2023 is the appellant hereinaggrieved by the judgment dated 29.11.2023 in the Writ Petition. The brieffacts necessary for disposal of this Writ Appeal are as follows: 2. The appellant had impugned Ext.P3 order before this Court in thewrit petition when confronted with recovery steps for recovery of theamounts confirmed against it by the order. It was the case of the appellantthat against Ext.P3 order, it has preferred Ext.P4 appeal along with Ext.P5stay petition for the assessment year 2022-23 under the Income Tax Actbefore the 4[th] respondent, the Appellate Authority. In the meantime, coercivesteps were taken for realisation of the demands. Therefore, the appellantpreferred WP(C) No.39353/2023 before this Court. The learned Single Judgefound that the Principal Commissioner (Exemption) is the competentauthority to condone the delay, but the application has been filed before thePrincipal Commissioner, the 2[nd] respondent. Holding so, the learned SingleJudge disposed of the writ petition with liberty to the appellant to file a freshapplication before the Principal Commissioner of Income Tax (Exemption) within a period of ten days and if such an application is filed, the PrincipalCommissioner of Income Tax (Exemption) was directed to consider the sameand pass orders in accordance with law. The 4[th] respondent was alsodirected to consider the application for stay filed by the appellant againstthe intimation under Section 143(1) expeditiously 3. The learned Single Judge, however, did not grant stay of recoveryproceedings pending disposal of the stay petition by the respondents. It isfor this limited relief; the appellant is before us through the present appeal. 4. We have heard Sri. Harisankar V. Menon, the learned counsel forthe appellant and Sri. Jose Joseph, the learned Standing counsel for theIncome Tax Department. In our view, since the learned Single Judge had relegated theappellant to the alternative remedy before the statutory authority, it wasincumbent upon the learned Judge to protect the appellant from recoveryproceedings pending disposal of the petitions by the respondent appellateauthority. Accordingly, we modify the impugned judgment of the learnedSingle Judge to the limited extent of clarifying that pending disposal of thestay petition or appeal, whichever is earlier by the appellate authority, therecovery proceedings against the appellant for recovery of the amounts -:5:- 4. We have heard Sri. Harisankar V. Menon, the learned counsel forthe appellant and Sri. Jose Joseph, the learned Standing counsel for theIncome Tax Department. In our view, since the learned Single Judge had relegated theappellant to the alternative remedy before the statutory authority, it wasincumbent upon the learned Judge to protect the appellant from recoveryproceedings pending disposal of the petitions by the respondent appellateauthority. Accordingly, we modify the impugned judgment of the learnedSingle Judge to the limited extent of clarifying that pending disposal of thestay petition or appeal, whichever is earlier by the appellate authority, therecovery proceedings against the appellant for recovery of the amounts -:5:- confirmed against it by Ext.P3 order shall be kept in abeyance. Save for thislimited modification, the rest of the directions in the impugned judgmentare not interfered with. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE sd/- DR. KAUSER EDAPPAGATH JUDGE kp