By Advs.sri.harisankar v. Menonsmt.meera V.menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942 WP(C).No.10400 OF 2020(Y) PETITIONER/S: KUTHUBUDHEENKALODI HOUSE, PARAMMAL, CHERUSHOLA P.O, MALAPPURAM-676 510 BY ADVS.SRI.HARISANKAR V. MENONSMT.MEERA V.MENON RESPONDENT/S: 1THE INCOME TAX OFFICER,WARD 1 AND TPS, INCOME TAX OFFICE,NO.20/1240, TARIFF BAZAR, TOWN HALLROAD,TIRUR, MALAPPURAM-676101 2THE COMMISSIONER OF INCOME TAX (APPEALS)AAYAKAR BHAVAN, MANNANCHIRA, KOZHIKODE-673 001 OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON27.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner, an individual assessee under theIncome Tax Act has approached this Court under Article226 of the Constitution of India challenging the order dated20.03.2020 Ext.P4, whereby the interim application filedalong with the appeal preferred against the assessmentorder for the assessment years 2017-18 dated 28.11.2019,has been disposed of without affording opportunity ofhearing subject to the condition of depositing 20% ofdemand. 2.Against the assessment order, Ext.P1 dated28.11.2019, pertaining to the assessment year 2017-18,petitioner preferred an appeal and stay application Exts.P2and P3. The learned counsel appearing on behalf of thepetitioner submits that the assessment order waschallenged on various grounds taken in the appeal but factof the matter is that though the petitioner had sought theindulgence of the Commissioner of Income Tax foradjournment, despite that in the absence of the petitioner,the stay application has been disposed of subject to the condition as noticed above. In support of his submission, herelies upon the Division Bench judgment of this Court inW.A No.1529 of 2019, whereby it is held that the circulardated 31.07.2017 issued by Income Tax Department do nothave any binding effect and there is no such provision inthe statute. 3.Issue notice before admission. Sri.ChristopherAbraham accepts notice on behalf of the Income Tax. Hesubmits that the petitioner did not appear before theauthority dealing with the same and no other option but todispose of the same, by relying upon the circular, referredabove. 4.I have heard the learned counsel for the partiesand appraised the paper book. The facts as noticed aboveare not in dispute. Against the assessment order, theappeal and stay application have been referred. 5.The Division Bench of this Court after havingnoticed the circular, ibid, remanded the matter to theIncome Tax Authority to consider and decide the stayapplication, in accordance with law without calling upon theassessee to comply with the condition of deposit of 20% of 3.Issue notice before admission. Sri.ChristopherAbraham accepts notice on behalf of the Income Tax. Hesubmits that the petitioner did not appear before theauthority dealing with the same and no other option but todispose of the same, by relying upon the circular, referredabove. 4.I have heard the learned counsel for the partiesand appraised the paper book. The facts as noticed aboveare not in dispute. Against the assessment order, theappeal and stay application have been referred. 5.The Division Bench of this Court after havingnoticed the circular, ibid, remanded the matter to theIncome Tax Authority to consider and decide the stayapplication, in accordance with law without calling upon theassessee to comply with the condition of deposit of 20% of demanded amount. The direction in the aforementionedjudgment is still in force and has not been set aside so far.It is intriguing that either the Assessing Authorities whileexercising the powers under 226 of Constitution of India orthe Appellate authority, the Commissioner of Income Taxare not adhering to the directions passed by the divisionBench of this Court and have been passing the orders ofsuch nature compelling the assessee to approach thisCourt. I request Sri.Christopher Abraham to sensitize theofficers regarding the directions contained in the DivisionBench that the assessees are not unnecessarily compelledto approach this Court without any fault. This Court inSanguine of the fact that the aforementioned directionshenceforth onwards would be complied with by theauthorities in letter and spirit. The order impugned leavesno manner of doubt that the stay application has beendismissed in the absence of the assessee or representativewith the imposition of condition. In view of what has beennoticed, the impugned order Ext.P4 dated 20.03.2020 isnot sustainable and hereby set aside. The writ petitionstands allowed. The matter is remitted to the Commissioner nak of Income Tax to decide the stay application asexpeditiously, in accordance with law after affording anopportunity of hearing to the petitioner and therepresentative of the Revenue. Let this exercise beundertaken within a period of 45 days from the date ofreceipt of a copy of this judgment. Till such time, thedemand raised is ordered to be kept in abeyance. It ismade clear that the interim order would remain in force tillthe adjudication of the stay application. Sd/- AMIT RAWALJUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2017-18 EXHIBIT P2 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT 2017-18. EXHIBIT P3 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.