Wp(C)/22177/2022 Of Mathew George v. Commissioner Of Income Tax (Appeals) - 3

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 22 DAY OF AUGUST 2023 / 31ST SRAVANA, 1945 WP(C) NO. 22177 OF 2022 PETITIONER: MATHEW GEORGE, AGED 67 YEARS, S/O K. G. GEORGE, 3A, LINK HORIZON, MARINE DRIVE, ERNAKULAM, HIGH COURT P. O., ERNAKULAM-682031. BY ADV ROSHIN IPE JOSEPH RESPONDENTS: 1COMMISSIONER OF INCOME TAX (APPEALS) - 3,POORNIMA BUILDINGS, NEAR MANORAMA JUNCTION, PANAMPILLY NAGAR, ERNAKULAM, KOCHI-682036.POORNIMA BUILDINGS, NEAR MANORAMA JUNCTION, PANAMPILLY NAGAR, ERNAKULAM, KOCHI-682036. 2ASSISTANT DIRECTOR OF INCOME TAX (INV.)-II,4TH FLOOR, AARYA BHANGI PINNACLE, ERNAKULAM, S. A. ROAD, KOCHI-682020.4TH FLOOR, AARYA BHANGI PINNACLE, ERNAKULAM, S. A. ROAD, KOCHI-682020. 3PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL), KOCHI, KANDAMKULATHI TOWERS, M. G. ROAD, ERNAKULAM P. O., KOCHI – 682 011. (Impleaded as additional third respondent vide order dated9.8.2023 in IA.No.1/2022.KOCHI, KANDAMKULATHI TOWERS, M. G. ROAD, ERNAKULAM P. O., KOCHI – 682 011. (Impleaded as additional third respondent vide order dated9.8.2023 in IA.No.1/2022. 4CENTRAL BOARD OF DIRECT TAXES,REPRESENTED BY ITS CHAIRMAN,NORTH BLOCK, SECRETARIAT BUILDING,NEW DELHI – 110 001.(Impleaded as additional fourth respondent vide order dated9.8.2023 in IA.No.1/2023.REPRESENTED BY ITS CHAIRMAN,NORTH BLOCK, SECRETARIAT BUILDING,NEW DELHI – 110 001.(Impleaded as additional fourth respondent vide order dated9.8.2023 in IA.No.1/2023. BY ADVS.JOSE JOSEPH, SC, INCOME TAX DEPARTMENT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON22.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :: 2 :: JUDGMENT Dated this the 22[nd] day of August 2023 The writ petition is filed, inter alia, to direct thefirst respondent to consider and dispose of Exts.P7 toP9 stay petitions filed by the petitioner. 2. The petitioner’s case is that, aggrieved by Exts.P1, P3 and P5 orders passed by the secondrespondent under Black Money (Undisclosed ForeignIncome and Assets) and Imposition of Tax Act, 2015, thepetitioner has preferred statutory appeals before thefirst respondent. Along with the appeals, the petitionerhas also filed Exts.P7, P8 and P9 stay petitions. Duringthe pendency of the stay petitions, the third respondenthas passed Ext.P10 order directing the petitioner toremit 20% of the demanded amount. The petitionersubmits that the third respondent has no jurisdiction topass the said order. Moreover, as the statutory appeals :: 3 :: and the stay petitions are pending consideration before the first respondent, notwithstanding Ext.P10 order, thefirst respondent may be directed to consider anddispose of Exts.P7 to P9, immediately. Hence, the writpetition. 3. Heard; Sri.Roshin Ipe Joseph, the learnedcounsel for the petitioner and Sri.Jose Joseph, thelearned Standing Counsel appearing for therespondents. 4. Having considered the pleadings and materials on record, and taking note of the fact that the Exts.P7to P9 stay petitions are pending consideration beforethe first respondent, in exercise of the extra ordinarypowers of this Court under Article 226 of theConstitution of India, I deem it appropriate to direct thefirst respondent to consider and dispose of the sameimmediately. :: 4 :: Resultantly, I order the writ petition as follows: (i) The first respondent is directed to considerand dispose of Exts.P7 to P9 stay petitions, inaccordance with law and as expeditiously aspossible, at any rate, within a period of threemonths from the date of receipt of a certifiedcopy of the judgment, untrammelled by anyobservation made in Ext.P10 letter. (ii) If the first respondent proposes to pass anyconditional interim order of stay, he shall statereasons for the same. :: 4 :: Resultantly, I order the writ petition as follows: (i) The first respondent is directed to considerand dispose of Exts.P7 to P9 stay petitions, inaccordance with law and as expeditiously aspossible, at any rate, within a period of threemonths from the date of receipt of a certifiedcopy of the judgment, untrammelled by anyobservation made in Ext.P10 letter. (ii) If the first respondent proposes to pass anyconditional interim order of stay, he shall statereasons for the same. (iii) Until such time orders are passed onExts.P7 to P9, all further coercive proceedingsas against the petitioner shall stand deferred. Sd/- C.S.DIAS JUDGE PETITIONER EXHIBITS: APPENDIX Exhibit P1TRUE COPY OF THE ORDER DATED 27-4-2020 UNDER S.10(3) OFTHE BLACK MONEY (UNDISCLOSED FOREIGN INCOME ANDASSETS) AND IMPOSITION OF TAX ACT, 2015.THE BLACK MONEY (UNDISCLOSED FOREIGN INCOME ANDASSETS) AND IMPOSITION OF TAX ACT, 2015. Exhibit P2TRUE COPY OF THE DEMAND NOTICE DATED 27-4-2020 ISSUEDTO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACKMONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDINGFROM THE PETITIONER A SUM OF RS.1,34,45,129/- (RUPEESONE CRORE THIRTY FOUR LAKHS FORTY FIVE THOUSAND ONEHUNDRED AND TWENTY NINE ONLY).TO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACKMONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDINGFROM THE PETITIONER A SUM OF RS.1,34,45,129/- (RUPEESONE CRORE THIRTY FOUR LAKHS FORTY FIVE THOUSAND ONEHUNDRED AND TWENTY NINE ONLY). Exhibit P3TRUE COPY OF THE ORDER DATED 16-3-2022 PASSED BYSECOND RESPONDENT UNDER S.41 OF THE BLACK MONEY(UNDISCLOSED FOREIGN INCOME AND ASSETS) ANDIMPOSITION OF TAX ACT, 2015.SECOND RESPONDENT UNDER S.41 OF THE BLACK MONEY(UNDISCLOSED FOREIGN INCOME AND ASSETS) ANDIMPOSITION OF TAX ACT, 2015. Exhibit P4TRUE COPY OF THE DEMAND NOTICE DATED 16-3-2022 ISSUEDTO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACKMONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDING ASUM OF RS.4,03,35,387/- (RUPEES FOUR CRORES THREE LAKHSTHIRTY FIVE THOUSAND THREE HUNDRED AND EIGHTY SEVENONLY) FROM THE PETITIONER.TO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACKMONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDING ASUM OF RS.4,03,35,387/- (RUPEES FOUR CRORES THREE LAKHSTHIRTY FIVE THOUSAND THREE HUNDRED AND EIGHTY SEVENONLY) FROM THE PETITIONER. Exhibit P5TRUE COPY OF THE ORDER DATED 16-3-2022 PASSED BYSECOND RESPONDENT UNDER S.43 OF THE BLACK MONEY(UNDISCLOSED FOREIGN INCOME AND ASSETS) ANDIMPOSITION OF TAX ACT, 2015.SECOND RESPONDENT UNDER S.43 OF THE BLACK MONEY(UNDISCLOSED FOREIGN INCOME AND ASSETS) ANDIMPOSITION OF TAX ACT, 2015. Exhibit P6TRUE COPY OF THE DEMAND NOTICE DATED 16-3-2022 ISSUEDTO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACKMONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDING ASUM OF RS.10,00,000/- (RUPEES TEN LAKHS ONLY) FROM THEPETITIONER.TO THE PETITIONER IN FORM I UNDER RULE 5 OF THE BLACKMONEY AND IMPOSITION OF TAX RULES, 2015, DEMANDING ASUM OF RS.10,00,000/- (RUPEES TEN LAKHS ONLY) FROM THEPETITIONER. Exhibit P7TRUE COPY OF THE APPLICATION FILED BY PETITIONERBEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P2.BEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P2. Exhibit P8TRUE COPY OF THE APPLICATION FILED BY PETITIONERBEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P4.BEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P4. Exhibit P9TRUE COPY OF THE APPLICATION FILED BY PETITIONERBEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P6.BEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P6. :: 6 :: Exhibit P10 TRUE COPY OF THE LETTER DATED 17-6-2022 ISSUED BY FIRSTRESPONDENT TO THE PETITIONER.RESPONDENT TO THE PETITIONER. Exhibit P11 TRUE COPY OF CBDT OM NO. 404/72/93-ITCC (FTS:284146)DATED 31-7-2017, WHICH IS REFERRED TO IN EXT.P10.DATED 31-7-2017, WHICH IS REFERRED TO IN EXT.P10. Exhibit P12 TRUE COPY OF O.M. NO.404/72/93-ITCC DATED 29-2-2016 ISSUEDBY CBDT.BY CBDT. Exhibit P8TRUE COPY OF THE APPLICATION FILED BY PETITIONERBEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P4.BEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P4. Exhibit P9TRUE COPY OF THE APPLICATION FILED BY PETITIONERBEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P6.BEFORE FIRST RESPONDENT PRAYING FOR A STAY OF EXT.P6. :: 6 :: Exhibit P10 TRUE COPY OF THE LETTER DATED 17-6-2022 ISSUED BY FIRSTRESPONDENT TO THE PETITIONER.RESPONDENT TO THE PETITIONER. Exhibit P11 TRUE COPY OF CBDT OM NO. 404/72/93-ITCC (FTS:284146)DATED 31-7-2017, WHICH IS REFERRED TO IN EXT.P10.DATED 31-7-2017, WHICH IS REFERRED TO IN EXT.P10. Exhibit P12 TRUE COPY OF O.M. NO.404/72/93-ITCC DATED 29-2-2016 ISSUEDBY CBDT.BY CBDT. Exhibit P13 TRUE COPY OF EXTRACT OF GUIDELINES ISSUED BY CBDTDATED 21-3-1996 PARTIALLY MODIFYING INSTRUCTION NO.1914DATED 2-12-1993.DATED 21-3-1996 PARTIALLY MODIFYING INSTRUCTION NO.1914DATED 2-12-1993. Exhibit P14 TRUE COPY OF EXTRACT OF INSTRUCTION NO.1914 DATED21-3-1993 ISSUED BY CBDT.21-3-1993 ISSUED BY CBDT.