Noorul Islam Educational Trust v. The Commissioner Of Income Tax (Appeals-I)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.06.2019 CORAM THE HONOURABLE DR.JUSTICE ANITA SUMANTH W.P(MD)No.1066 of 2015 and M.P.(MD)Nos.1 and 2 of 2015 Noorul Islam Educational Trust,Represented by its Chairman A.P.Majid Khan ... Petitioner Vs. 1.The Commissioner of Income Tax (Appeals-I),No.2, V.P.Rathinasamy Nadar Road,Bibikulam,Madurai 0 625 002. 2.The Commissioner of Income Tax (Appeals III),Ernakulam,Kotchi – 16. 3.The Deputy Commissioner of Income Tax,Central Circle-I,Trivandrum 4.The Income Tax Officer,Ward I (1),Nagercoil 5.The Income Tax Officer (Exemption),Tirunelveli, Tirunelveli District ... Respondents (R5 was impleaded vide court orderdated 25.03.2015 in M.PNo.3/15) PRAYER:Writ Petition is filed under Article 226 of the Constitutionof India praying for the issuance of writ of certiorarified mandamuscalling for records relating to the impugned order made by the firstrespondent to I.T.A.NO.0026/2010-2011 dated 07.01.2015 and quash thesame as illegal and consequently direct the first respondentto passorders on the appeal in I.T.A.No.0026/2010-11 within the time thatmay stipulated by this Court and until then restrain the respondentfrom taking coercive action for recovery of the demand subjectmatter of the said appeal.https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Ajmal Khan Senior Counsel forM/s.Ajmal Associates For Respondents : Mrs.S.Srimathy Standing Counsel for the Income Tax O R D E R The petitioner challenges an order dated 07.01.2015 passed bythe Commissioner of Income Tax (Appeals) in ITA No.0026 of 2010-2011and for a consequential direction to the same respondent to passorders in ITA No. 26 of 2010-2011 within a stipulated time frame. 2. The petitioner is a Public Educational Charitable Trust. Asearch was carried out under Section 132 of the Income Tax Act, 1961(in short 'Act'). By order dated 24.09.2012, jurisdiction over theassessment of the petitioner was transferred to the Central Circle,Trivandrum by the Chief Commissioner of Income Tax, Trivandrum. Anotice was issued under Section 158 BD of the Act on 14.03.2003calling upon the petitioner to file a return of income for the blockperiod 04.01.1995 to 11.09.2001. 3.The petitioner challenged order dated 24.09.2002 in W.P(MD)No.24865 of 2003 before this Court. During the pendency of the writpetition, the third respondent(R3) passed an order of assessment forthe block period on 14.02.2009 and the aforesaid order waschallenged by way of first appeal before the second respondent on11.03.2009. 4. Coercive recovery was initiated by the third respondenttriggering the writ petitioner to file a writ petition in W.P(Civil)No.12442 of 2009 before the High Court of Kerala seeking a directionto the second respondent to dispose of the appeal and stay petitionand also a direction to keep in abeyance the recovery action in themean time. The request was acceded to by the High Court vide orderdated 21.04.2009. 5. While this is so, the writ petition, in W.P(MD) No.24865 of2003, was disposed on 22.04.2008 setting aside order dated01.04.2002 and remitting the matter for fresh consideration. Thethird respondent thereafter passed an order under Section 127 of theAct dated 16.12.2008 transferring the file of the petitioner to theDeputy Commissioner of Income Tax, Central Circle, Trivandram. 6. W.P(MD)No.60 of 2009 thus came to be filed challenging orderdated 16.12.2008. 7. W.P(MD)No.60 of 2009 was allowed on 11.12.2009 as a resultthat the transfer of file was quashed.https://hcservices.ecourts.gov.in/hcservices/ 8. The Revenue filed an appeal in W.A(MD) No.98 of 2010. 9. In the meanwhile, in the light of the order passed by thelearned single Judge dated 11.02.2009, the appeal as well as staypetition were transferred by the Commissioner of Income Tax(Appeals) in Kerala to the Commissioner of Income Tax (Appeals)Madurai. The appeal as well as stay petition are still pending. 6. W.P(MD)No.60 of 2009 thus came to be filed challenging orderdated 16.12.2008. 7. W.P(MD)No.60 of 2009 was allowed on 11.12.2009 as a resultthat the transfer of file was quashed.https://hcservices.ecourts.gov.in/hcservices/ 8. The Revenue filed an appeal in W.A(MD) No.98 of 2010. 9. In the meanwhile, in the light of the order passed by thelearned single Judge dated 11.02.2009, the appeal as well as staypetition were transferred by the Commissioner of Income Tax(Appeals) in Kerala to the Commissioner of Income Tax (Appeals)Madurai. The appeal as well as stay petition are still pending. 10. Recovery action was initiated and the petitioner filed awrit petition in W.P(MD)No.7212 of 2013 challenging the recovery.The aforesaid writ petition was disposed of on 26.04.2013 directingthe first respondent to pass orders on the stay petition. The firstrespondent went a step further and posted the main appeal forhearing on 30.08.2014. 11.As far as the stay petition is concerned, the Officerrejected the request for stay but held that the appeal should bekept pending till a final decision was taken on the question ofjurisdiction for assessment. 12. As against the order of rejection dated 07.01.2015 thepetitioner has approached this Court with the present writ petition.The Department was directed at the time of admission not to takecoercive action against the petitioner pending writ petition. 13. In the meanwhile W.A(MD) No.98 of 2010 was allowed on20.03.2015 reversing the order of the learned single Judgeupholding the order of transfer of file from Chennai to Trivandram. 14. In appeal preferred by the petitioner before the SupremeCourt in Civil Appeal No.10234 of 2016 the order of the DivisionBench dated 21.10.2016 was reversed confirming the order of thelearned single Judge holding that the transfer of files from Chennaito Trivandram was illegal and incompetent. 15. Thus and as a result of the judgment of the Supreme Courtdated 21.10.2016, it is the Assessing Officer in Tamilnadu who hasjurisdiction to assess the petitioner. 16. The prayer in the writ petition is limited to a challengeto the impugned order of the first respondent dated 07.01.2015 wherethe Commissioner of Income Tax (Appeals), the first respondent,directs the petitioner to approach the Administrative Commissionerseeking stay of payment also stating that the appeal will be keptpending till a final decision on jurisdiction is arrived at. 17. In the light of the elapse of time as can be seen from thenarration as aforesaid, time is ripe for the disposal of the appeal.The first respondent is thus directed to take the appeal up fordisposal expeditiously. Having regard to the fact that the blockperiod in question is 01.04.1995 to 11.09.2001, a direction isissued to the first respondent to take I.T.A. No.26 of 2010-2011 uphttps://hcservices.ecourts.gov.in/hcservices/for hearing forthwith, hear the petitioner and pass orders within aperiod of four weeks from date of receipt of a copy of this order. The first respondent has in the impugned order referred to a remandreport and hence, pleadings, as such, are complete before him. 18.Coercive recovery proceedings shall not be initiated tillthe disposal of the appeal as aforesaid. 19. This writ petition is disposed of in the aforesaid terms.No costs. Consequently, connected miscellaneous petitions areclosed. Sd/- Assistant Registrar (CS-II) // True Copy // Sub Assistant Registrar To 1.The Commissioner of Income Tax (Appeals-I), No.2, V.P.Rathinasamy Nadar Road,Bibikulam, Madurai 0 625 002. 2.The Commissioner of Income Tax (Appeals III), Ernakulam,Kotchi – 16. 3.The Deputy Commissioner of Income Tax, Central Circle-I, Trivandrum 4.The Income Tax Officer,Ward I (1),Nagercoil 5.The Income Tax Officer (Exemption),Tirunelveli, Tirunelveli District. +1 CC to M/s.S.SRIMATHY, Advocate ( SR-71796[F] dated 27/06/2019 ) CM MS/13.09.2019/4P.7C