Wp(C)/10614/2020 Of Sheeja Pillai v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942 WP(C).No.10614 OF 2020(B) PETITIONER/S: SHEEJA PILLAI PROPRIETRESS, V FOR U, VII/738-C, AYLARA P. O., YEROOR, KOLLAM DISTRICT, PIN - 691 306. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) RESPONDENT/S: 1THE INCOME TAX OFFICER WARD -3, INCOME TAX OFFICE, AAYAKAR BHAVAN, NEAR KARBALA JN., RAILWAY STATION ROAD, KOLLAM, PIN - 691001. 2THE COMMISSIONER OF INCOME TAX (APPEALS)KOWDIAR, THIRUVANANTHAPURAM - 695 003. OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON02.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 2[nd] day of June 2020 The petitioner, who is an assessee under the IncomeTax Act filed income tax return for the assessment year2017-18. The 1[st] respondent, however assessed thepetitioner under the Act by rejecting the return andestimated the income as Rs.37,84,262/- and raised ademand of Rs.47,35,787/-. The petitioner was also servedwith a notice under Section 142(1) by the 1[st] respondentie., the assessment order, Ext.P1 dated 3.12.2019.Aggrieved by Ext.P1 order, as rectified by Ext.P1(a), thepetitioner preferred an appeal, Ext.P2 before therespondent, Commissioner of Income Tax (Appeals),Kowdiar, Thiruvananthapuram. Section 226 of theIncome Tax Act empowers the assessing officer to stay thedemand. Since the petitioner did not deposit any amount,provisions of sub section (3) of Section 226 of the 1962Act was invoked by issuing a communication of garnisheevide Ext.P5 dated 6[th] of March 2020. 2.Mr. S.Anilkumar, learned counsel appearing onbehalf of the petitioner submits that though the petitionershould have been advised to prefer a stay application in apending appeal as the necessity to file the applicationunder Section 226 before the Assessing Officer hasbecome futile on account of the garnishee notice Ext.P5,the petitioner may be granted sufficient time to file a stayapplication enabling him to press for the stay before theappellate authority, in accordance with law. 3.Mr. Christopher Abraham, learned counselappearing on behalf of the Income Tax Departmentsubmits that the necessity to issue garnishee notice wason account of the fact that the petitioner neither filed thereturn nor gave an explanation with regard to deposit andthe Government's revenue had to be recovered in themanner as noticed above in case the assessee fails to payoff the same. 4.Having heard the learned counsel for the partiesand appraised the paper book, I am of the view that thepetitioner was not advised properly in seeking stay of thedemand by submitting an application Ext.P3 dated 18[th] ofMarch 2020 as it is post the issuance of garnishee noticedated 6[th] of March 2020. In fact, an application for stay orsimple prayer for stay along with the pending appealought to have been preferred before the 2[nd] respondent.Be that as it may, the petitioner has undertaken to file theapplication for stay and as there is lock down owing to theCOVID 19, pandemic, I grant three weeks time to thepetitioner to file the application for stay before the 2[nd]respondent. In case such application is filed, the 2[nd]respondent would decide the application for stay withinone month thereafter, after affording an opportunity ofhearing to the parties and in accordance with law. Tillsuch time, notice Ext.P5 dated 6[th] of March 2020 isordered to be kept in abeyance. It is made clear that the WP(C).No.10614 OF 2020(B) 5 interim stay is till the disposal of the interim applicationand not beyond. The writ petition stands stands disposed of. sab Sd/- AMIT RAWAL JUDGE WP(C).No.10614 OF 2020(B) 6 APPENDIX PETITIONER'S/S EXHIBITS: