Wp(C)/19691/2022 Of Kanjiramukalel Abdurahiman Abdulmanaf v. The Additional/Joint/Deputy/Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 17 DAY OF JUNE 2022 / 27TH JYAISHTA, 1944WP(C) NO. 19691 OF 2022 PETITIONER: KANJIRAMUKALEL ABDULRAHIMAN ABDULMANAF, AGED 44 YEARSKANJIRAMUKALEL HOUSE, PALLARIMANGALAM P.O. KOTHAMANGALAM-686671 ERNAKULAM DISTRICT, KERALA BY ADVS.JOSEPH MARKOSE (SR.)ABRAHAM JOSEPH MARKOSISAAC THOMASALEXANDER JOSEPH MARKOSSHARAD JOSEPH KODANTHARA RESPONDENTS: 1THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAXCOMMISSIONER OF INCOME TAX INCOME TAX OFFICER, NATIONAL E-ASSESSMENT CENTRE, NEW DELHI-110001.CENTRE, NEW DELHI-110001. 2THE INCOME TAX OFFICER, THE INCOME TAX OFFICER, WARD-1, TEMPLE ROAD THODUPUZHA -685584.THE INCOME TAX OFFICER, WARD-1, TEMPLE ROAD THODUPUZHA -685584. 3THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL SCHEME, NEW DELHI-110001.NATIONAL FACELESS APPEAL SCHEME, NEW DELHI-110001. 4THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAXNATIONAL E-ASSESSMENT CENTRE,NEW DELHI-110001.NATIONAL E-ASSESSMENT CENTRE,NEW DELHI-110001. BY ADV JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 17.06.2022, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: N. NAGARESH, J. ````````````````````````````````````````````````````````````` W.P.(C) No.19691 of 2022 ````````````````````````````````````````````````````````````` Dated this the 17[th] day of June, 2022 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is an income tax assessee, is before this Court seeking to quash Ext.P2 Assessment Orderdated 16.03.2022 and P8 notice dated 26.04.2022. Thepetitioner also seeks stay of recovery of the amountdemanded under Ext.P2 Assessment Order. 2.The petitioner states that he is the sole Proprietorof a business of trading in glass products in retail. Therespondents reopened income tax assessment of thepetitioner for the year 2017–'18 invoking Section 147 readwith Section 148 and 144B of the Income Tax Act, 1961.Notice in respect of the proceedings was sent to the e-mail : 3 : ID of the former Accountant of the petitioner. The petitionerwas not served with any notice. 3.When the petitioner came to know about theSection 148 notice in the year 2022, the petitioner submittedExt.P1 Return dated 01.03.2022. The respondents ignoredExt.P1 and sent a show-cause notice on 10.03.2022. Thepetitioner was given only four days time to respond. Evenbefore the petitioner could respond, Ext.P2 AssessmentOrder was passed on 16.03.2022. When the petitioner came to know about the 4.The petitioner filed Ext.P4 appeal dated10.04.2022 before the 3[rd] respondent-Commissioner ofIncome Tax (Appeals), National Faceless Appeal Scheme.The petitioner also filed Ext.P5 stay petition. No decision hasbeen taken on the stay petition or appeal preferred by thepetitioner. Pending disposal of the appeal, the 2[nd] respondenthas demanded payment of 20% of the disputed demand forgranting stay till disposal of the appeal, relying on theguidelines issued by the Central Board of Direct Taxes. Thepetitioner is before this Court aggrieved by Ext.P8 notice. : 4 : 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing therespondents. 6.Against Ext.P2 Assessment Order dated16.03.2022, the petitioner has preferred Ext.P4 appealinvoking the provisions of Rule 45 of the Income Tax Rules.The petitioner has also preferred Ext.P5 stay petition. Theappeal filed by the petitioner being of a statutory nature, theAppellate Authority is bound to consider the appeal within areasonable time. Against Ext.P2 Assessment Order dated 7. This Court is of the view that when the petitioner has preferred statutory appeal along with a stay petition,during the pendency of the said appeal and stay petition, itwill be harsh and unjust to take coercive action against thepetitioner. : 4 : 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing therespondents. 6.Against Ext.P2 Assessment Order dated16.03.2022, the petitioner has preferred Ext.P4 appealinvoking the provisions of Rule 45 of the Income Tax Rules.The petitioner has also preferred Ext.P5 stay petition. Theappeal filed by the petitioner being of a statutory nature, theAppellate Authority is bound to consider the appeal within areasonable time. Against Ext.P2 Assessment Order dated 7. This Court is of the view that when the petitioner has preferred statutory appeal along with a stay petition,during the pendency of the said appeal and stay petition, itwill be harsh and unjust to take coercive action against thepetitioner. In that view of the matter, the writ petition is disposed of directing the 3[rd] respondent to consider Ext.P5stay petition filed by the petitioner and pass appropriateorders thereon within a period of three months. The : 5 : respondents shall not take any coercive proceedings against the petitioner based on Ext.P2 Assessment Order or Ext.P8notice, till a decision is taken by the 3[rd] respondent on Ext.P5stay petition. aks/06.07.2022 Sd/- N. NAGARESH, JUDGE APPENDIX OF WP(C) 19691/2022 PETITIONER'S EXHIBITS Exhibit P1TRUE COPY OF RETURN DATED 1.3.2022FILED BY THE PETITIONER FILED BY THE PETITIONER Exhibit P2TRUE COPY OF ASSESSMENT ORDER DATED16.03.2022, COMPUTATION SHEET NOTICEOF DEMAND ISSUED BY THE 1ST RESPONDENT16.03.2022, COMPUTATION SHEET NOTICEOF DEMAND ISSUED BY THE 1ST RESPONDENTExhibit P3TRUE COPY OF THE TRADING AND PROFIT &LOSS ACCOUNT FOR THE YEAR 2017-18 LOSS ACCOUNT FOR THE YEAR 2017-18 Exhibit P4TRUE COPY OF THE APPEAL DATED10.04.2022 FILED BEFORE THE 3RDRESPONDENT 10.04.2022 FILED BEFORE THE 3RDRESPONDENT Exhibit P5TRUE COPY OF THE STAY PETITION DATED09.04.2022 FILED BEFORE THE 3RD RESPONDENT Exhibit P6TRUE COPY OF THE ACKNOWLEDGEMENT DATED10.04.2022 Exhibit P7TRUE COPY OF THE APPLICATION DATED14.04.2022 SUBMITTED BEFORE THE 2NDRESPONDENT Exhibit P8TRUE COPY OF THE NOTICE DATED26.04.2022 ISSUED BY THE 2NDRESPONDENT26.04.2022 ISSUED BY THE 2NDRESPONDENT