Rep. By Its Chairman A.p.majeed Khan v. The Commissioner Of Income Tax(Appeals - I)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 26.04.2013 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARANW.P.(MD)No.7212 of 2013andM.P(MD)Nos.1 and 2 of 2013 Noorul Islam Educational Trust, Rep. by its Chairman A.P.Majeed Khan. : Petitioner Vs. 1.The Commissioner of Income Tax(Appeals - I), No.2, V.P.Rathinasamy Nadar Road, Bibikulam, Madurai - 625 002. 2.The Commissioner of Income Tax(Appeals III), Ernakulam, Kochi - 16. 3.The Deputy Commissioner of Income Tax, Central Circle - I, Trivandrum. 4.The Income Tax Officer, Ward I(1), Nagercoil. : Respondents Prayer: Writ Petition is filed under Article 226 of the Constitutionof India praying for the issue of a Writ of Certiorari calling for therecords relating to the impugned proceedings issued by the fourthrespondent in P.A.N./G.I.R.No.AAATN 116/B, dated 18.03.2013 and quashthe same as illegal. For Petitioner : Mr.M.Ajmalkhan for M/s. Ajmal AssociatesFor Respondents : Mr.Krishnamurthy Standing counsel for Income Tax******** ORDER By consent, the Writ Petition itself is taken up for finaldisposal. 2. The Writ Petition is directed against the notice dated18 March, 2013 on the file of the Income Tax Officer, Nagercoil,whereby and where under, the petitioner was directed to show-cause asto why penalty should not be levied on account of non-payment ofassessed amount. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner is an assessee on the file of the Income TaxOfficer, Nagercoil. The Income Tax Officer passed an order of assessment on 14 February, 2009. The said order was challenged bythe petitioner before the Commissioner of Income Tax, Kochi. Sincethere was no stay granted, the petitioner moved the High Court ofKerala in W.P(Civil)No.12442 of 2009 to stay the proceedings ofrecovery till the disposal of the appeal. The learned Judge waspleased to pass an order directing the Commissioner of Income Tax,Kochi to consider and dispose of the stay petition filed by thepetitioner within a period of one month. The Assessing Authority wasdirected not to initiate recovery proceedings for recovering thedisputed tax till the disposal of the stay petition. The appeal wasthereafter transferred to the file of Commissioner of Income Tax,Madurai. 4. The Commissioner of Income Tax, Madurai after the transfer ofappeal, granted an interim stay, which was later extended up to 31December, 2012. The interim order was not extended thereafter.The appeal is stated to be pending. 5. While the matters stood thus, the fourth respondent issued theimpugned notice directing the petitioner to show-cause as to whypenalty should not be imposed. The said notice is challenged in thisWrit Petition. 6. The learned Senior Counsel for the petitioner contended thatThe High Court of Kerala granted interim stay till the disposal of thestay petition. Even though the said order was against the Commissionerof Income Tax, Kochi, the first respondent being the authority to whomthe appeal was transferred, is bound by the said order. According tothe learned counsel, the Commissioner of Income Tax, Madurai grantedstay up to 31 December, 2012 and the appeal is kept pending. Duringthe currency of the appeal, the fourth respondent was not justified inissuing notice for recovery and the same would amount to contempt ofCourt. 7. According to the learned standing counsel for Income Tax, theimpugned notice is only a show-cause notice and it is open to thepetitioner to submit his explanation. 6. The learned Senior Counsel for the petitioner contended thatThe High Court of Kerala granted interim stay till the disposal of thestay petition. Even though the said order was against the Commissionerof Income Tax, Kochi, the first respondent being the authority to whomthe appeal was transferred, is bound by the said order. According tothe learned counsel, the Commissioner of Income Tax, Madurai grantedstay up to 31 December, 2012 and the appeal is kept pending. Duringthe currency of the appeal, the fourth respondent was not justified inissuing notice for recovery and the same would amount to contempt ofCourt. 7. According to the learned standing counsel for Income Tax, theimpugned notice is only a show-cause notice and it is open to thepetitioner to submit his explanation. 8. The appeal preferred by the petitioner against the orderpassed by the third respondent is now pending before the firstrespondent. The High Court of Kerala on an earlier occasion stayedthe recovery till the disposal of stay petition by the Commissioner ofIncome Tax, Kochi. It was only the said appeal which was latertransferred to the file of first respondent. The first respondentbeing the successor in interest is bound by the order passed by theHigh Court of Kerala in W.P(Civil)No.12442 of 2009. In fact, thefirst respondent extended the interim order till 31 December, 2012. 9. The appeal was preferred during the year 2009 and it was latertransferred to the first respondent. Nothing prevented theCommissioner of Income Tax, Madurai from taking up the appeal andhttps://hcservices.ecourts.gov.in/hcservices/dispose of the same on merits. In case the Commissioner was of theview that it will take time to dispose of the appeal, he should havepassed an order in the stay petition. Failure on the part of the first respondent to pass final orders in the stay petition made thepetitioner to come up with the Writ Petition. 10. The Commissioner of Income Tax, Madurai is directed toconsider and dispose of the stay petition filed by the petitioner, asexpeditiously as possible and in any case within a period of fourweeks from today. The impugned notice of recovery would be keptabeyance till the disposal of the stay petition by the firstrespondent. 11. The Writ Petition is disposed of with the above direction.No Costs. Consequently, connected miscellaneous petitions areclosed. Sd/-Assistant Registrar(AS) /True copy/ Sub Assistant Registrar To 1.The Commissioner of Income Tax(Appeals - I), No.2, V.P.Rathinasamy Nadar Road, Bibikulam, Madurai - 625 002. 2.The Commissioner of Income Tax(Appeals III), Ernakulam, Kochi - 16. 3.The Deputy Commissioner of Income Tax, Central Circle - I, Trivandrum. 4.The Income Tax Officer, Ward I(1), Nagercoil.+1 CC to Mr.R. Krishnamoorthy, SC for IT, SR.No.24114+1 CC to Mr.M. Ajmalkhan,Advocate, SR.No. 24092 pmMM/16.05.2013/3P-7C/ Order made in W.P.(MD)No.7212 of 2013 Dated: 26.04.2013