Wa/646/2024 Of The Centre For Management Development v. The Commissioner Of Income-Tax (Exemptions)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. MONDAY, THE 20 DAY OF MAY 2024 / 30TH VAISAKHA, 1946 WA NO. 646 OF 2024 AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.10745 OF 2024OF HIGH COURT OF KERALA APPELLANT THE CENTRE FOR MANAGEMENT DEVELOPMENT, THYCAUD S.O. CHEMPAKASSERY THIRUVANANTHAPURAM KERALA REPRESENTED BY ITS DIRECTOR, PIN - 695014BY ADVS.NITISH SATHESH SHENOYSHERRY SAMUEL OOMMENSUKUMAR NAINAN OOMMEN RESPONDENTS 1THE COMMISSIONER OF INCOME-TAX (EXEMPTIONS),SAN JUAN TOWERS, 2ND FLOOR, BEHIND CR BUILDING OLD RAILWAY STATION ROAD, KOCHI, PIN – 682018SAN JUAN TOWERS, 2ND FLOOR, BEHIND CR BUILDING OLD RAILWAY STATION ROAD, KOCHI, PIN – 682018 2THE ASSISTANT COMMISSIONER OF INCOME-TAX,CENTRALISED PROCESSING CENTRE INCOME TAX DEPARTMENT, BANGALORE, PIN – 560050CENTRALISED PROCESSING CENTRE INCOME TAX DEPARTMENT, BANGALORE, PIN – 560050 3THE ADDITIONAL/ JOINT/ DEPUTY/ ASSISTANT COMMISSIONER OF INCOME TAX/ INCOME-TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, 4TH FLOOR, MAYUR BHAWAN, CONNAUGHT CIRCUS, NEW DELHI, PIN – 110001COMMISSIONER OF INCOME TAX/ INCOME-TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, 4TH FLOOR, MAYUR BHAWAN, CONNAUGHT CIRCUS, NEW DELHI, PIN – 110001 NATIONAL FACELESS ASSESSMENT CENTRE, 4TH FLOOR, 4THE ASSISTANT COMMISSIONER OF INCOME-TAX ,OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX EXEMPTION CIRCLE THIRUVANANTHAPURAM, PIN – 605003OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX EXEMPTION CIRCLE THIRUVANANTHAPURAM, PIN – 605003 5THE NATIONAL FACELESS APPEAL CENTRE (NFAC),MAYUR BHAWAN, CONNAUGHT LANE, BARAKHAMBA, NEW DELHI -REPRESENTED BY ITS COMMISSIONER, PIN – 110001 MAYUR BHAWAN, CONNAUGHT LANE, BARAKHAMBA, NEW BY SRI. JOSE JOSEPH -STANDING COUNSEL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON20.05.2024, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: J U D G M E N T============ Dr. A.K.Jayasankaran Nambiar, J. The appellant has approached this Court aggrieved by thejudgment dated 22.03.2024 of a learned Single Judge inW.P(C) No.10745 of 2024. 2. The limited contention urged by the learned counsel forthe appellant is that the learned Single Judge while relegating theappellant to his alternate remedy of pursuing appeals, along withdelay condonation applications and stay applications, against theimpugned assessment orders for the assessment years 2018-19,2020-21, 2021-22 and 2022-23 under the Income Tax Act, haddirected the appellant to remit 20% of the assessed amounts inrespect of all the assessment years pending disposal of the stayapplications/condonation of delay applications by the FirstAppellate Authority. 3. The learned counsel for the appellant, Sri.Sherry Samuel Oommen would point out that the learned Single Judge had directedthe 1[st] respondent to pass orders on the applications preferred bythe appellant under Section 119 of the Income Tax Act forcondonation of delay in filing returns which was necessary for aconsideration of the claim for exemption made by the appellant onmerits. The learned Single Judge, however, did not thereafter staythe recovery of the assessed amounts from the appellant for theaforementioned assessment years while directing consideration ofstay applications/delay condonation applications preferred by theappellant along with the appeals filed before the First AppellateAuthority under the Income Tax Act for the said assessment years. 4. We have also heard Sri.Jose Joseph, the learned Standingcounsel for the Income Tax Department. Oommen would point out that the learned Single Judge had directedthe 1[st] respondent to pass orders on the applications preferred bythe appellant under Section 119 of the Income Tax Act forcondonation of delay in filing returns which was necessary for aconsideration of the claim for exemption made by the appellant onmerits. The learned Single Judge, however, did not thereafter staythe recovery of the assessed amounts from the appellant for theaforementioned assessment years while directing consideration ofstay applications/delay condonation applications preferred by theappellant along with the appeals filed before the First AppellateAuthority under the Income Tax Act for the said assessment years. 4. We have also heard Sri.Jose Joseph, the learned Standingcounsel for the Income Tax Department. 5. On a consideration of the rival submissions, and findingthat the learned Single Judge by the impugned judgment hasalready directed the 1[st] respondent to dispose Ext.P3 series ofapplications within a specified time limit, and further that the 1[st]respondent has already summoned the appellant for a personalhearing in connection with the said applications, we dispose thewrit appeal by modifying only the latter part of the impugned judgment of the learned Single Judge that directs the appellant topay 20% of the assessed amounts pending consideration of the stayapplications/delay condonation applications filed by the appellantbefore the First Appellate Authority (5[th] respondent) along with theappeals against the assessment order for the assessment yearsaforementioned. We find this latter direction of the learned Singleto be legally unsustainable since the appellant has made out aprima facie case warranting a protection from recovery of thedisputed demands pending consideration of the stayapplications/condonation of delay applications by the FirstAppellate Authority. 6. Accordingly, while we maintain that part of the impugnedjudgment of the learned Single Judge that directs the 1[st] respondentto dispose Ext.P3 series of applications within a prescribed time, wemodify the latter part of the judgment of the learned Single Judgeand direct that the 5[th] respondent shall consider the stayapplications/delay condonation applications preferred by theappellant, along with the appeals against the assessment orders forthe assessment years aforementioned, within a period of twomonths from the date of receipt of a copy of this judgment. Therecovery of the amounts confirmed against the appellant by the assessment orders impugned in the appeals before the 5[th]respondent, shall be kept in abeyance till such time as orders arepassed by the 5[th]respondent in the delay condonationapplications/stay applications referred above. The writ appeal is disposed as above. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- SYAM KUMAR V.M. JUDGE smm APPENDIX OF WA 646/2024 PETITIONER ANNEXURESAnnexure A1TRUE COPY OF THE FORM 35 APPEAL ALONGWITH ACCOMPANYING ACKNOWLEDGEMENT FORTHE AY 2018-19Annexure A2TRUE COPY OF THE FORM 35 APPEAL ALONGWITH ACCOMPANYING ACKNOWLEDGEMENT FORTHE AY 2020-21Annexure A3TRUE COPY OF THE FORM 35 APPEAL ALONGWITH ACCOMPANYING ACKNOWLEDGEMENT FORTHE AY 2022-23Annexure A4TRUE COPY OF PROOF OF FILING OF THESTAY APPLICATION FOR THE RELEVANT YEARSAnnexure A5A TRUE COPY OF CIRCULAR NO 2 OF 2024DATED 05.03.2024Annexure A6TRUECOPYOFTHECONDONATIONAPPLICATION DATED 09.04.2024