Wp(C)/27395/2022 Of Mallelil Industries Private Limited v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 25 DAY OF AUGUST 2022 / 3RD BHADRA, 1944WP(C) NO. 27395 OF 2022 PETITIONER: MALLELIL INDUSTRIES PRIVATE LIMITED,MALLELIL HOUSE, ATTACHAKKAL P.O,PATHANAMTHITTA, KERALA- 689 691.REPRESENTED BY ITS MANAGING DIRECTOR, SREEDHARAN NAIR RAGHAVAN PILLAI. BY ADVS.ANIL D. NAIRTELMA RAJUEDATHARA VINEETA KRISHNANMOHAMMED SAVAD K.P.K.BIJU RESPONDENTS: 1INCOME TAX OFFICER,WARD 1 & TPS, TK ROAD, THIRUVALLA,KERALA -689 109.2INCOME TAX OFFICER,NATIONAL FACELESS ASSESSMENT CENTRE, NATIONAL E-ASSESSMENT CENTRE - NEACROOM NO. 402, 2ND FLOOR, E-RAMP, NEAR GATE NO. - 10, JAWAHARLAL NEHRU STADIUM, DELHI – 110 003.3COMMISSIONER OF INCOME TAX (APPEALS),NATIONAL FACELESS ASSESSMENT CENTRE,NATIONAL E-ASSESSMENT CENTRE - NEACROOM NO. 402, 2ND FLOOR, E-RAMP, NEAR GATE NO. - 10, JAWAHARLAL NEHRU STADIUM, DELHI – 110 003.BY SRI. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner has approached this Court beingaggrieved by Ext.P9 order though which the petitioner'sapplication seeking stay of recovery pursuant to Ext.P1 orderof assessment has been rejected by the first appellateauthority. 2.The learned counsel appearing for the petitionerstates that the appeal along with a stay petition was filedbefore the National Faceless Appeal Centre. It is submittedthat due to an oversight, the petitioner could not respond to anotice issued by the National Faceless Appeal Centre toupload submissions / arguments to be considered whiledeciding the stay application. It is submitted that the officer,therefore, proceeded to dismiss the stay application withouthaving the benefit of any submission on behalf of thepetitioner. It is submitted that the petitioner has a substantialcase on merits and it would be gross injustice if the petitioneris called upon to remit the entire demand following dismissalof the stay application. 3.The learned Standing Counsel appearing for the respondent Department points out that the stay petition wasconsidered pursuant to the directions issued by this Court inExt.P8 judgment and it was not open to the petitioner to saythat the petitioner could not respond to the notice issued bythe National Faceless Appeal Centre, due to an oversight. Itis submitted that the National Faceless Appeal Centre haspassed a very detailed and considered order and there is noreason to interfere with that order in the facts andcircumstances of this case. 4.Having heard the learned counsel for thepetitioner and the learned Standing Counsel for theDepartment, I am of the view that this writ petition can bedisposed of directing that the appeal filed by the petitioner beheard and disposed of by the National Faceless Appeal Centrewithin a time limit and granting stay of recovery subject tothe condition that the petitioner remits a sum equivalent to20% of the demand in Ext.P1. I am inclined to take this viewon account of the fact that normally, in proceedings underSection 220(6) of the Income Tax Act, before the AssessingOfficer, stay is granted on deposit of 20% of the demand interms of Ext.P7 Office Memorandum. This writ petition is,therefore, disposed of directing the National Faceless Appeal Centre to consider and pass orders on Ext.P2 appeal afteraffording an opportunity of hearing to the petitioner and inaccordance with law, within a period of six months from thedate of receipt of a certified copy of this judgment. Till suchtime orders are passed on Ext.P2, the demands on the basisof Ext.P1 order of assessment shall remain stayed oncondition that the petitioner remits a sum equivalent to 20%of the demand within a period of two weeks from today. The writ petition is disposed of as above. Sd/-GOPINATH P.JUDGE APPENDIX OF WP(C) 27395/2022 PETITIONER EXHIBITS Exhibit P1 Centre to consider and pass orders on Ext.P2 appeal afteraffording an opportunity of hearing to the petitioner and inaccordance with law, within a period of six months from thedate of receipt of a certified copy of this judgment. Till suchtime orders are passed on Ext.P2, the demands on the basisof Ext.P1 order of assessment shall remain stayed oncondition that the petitioner remits a sum equivalent to 20%of the demand within a period of two weeks from today. The writ petition is disposed of as above. Sd/-GOPINATH P.JUDGE APPENDIX OF WP(C) 27395/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER FORTHE YEAR 2018-19 DATED 30.03.2021 PASSED BY THE 2ND RESPONDENT Exhibit P2 TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. Exhibit P3 TRUE COPY OF THE ACKNOWLEDGMENT DATED26.08.2021 OF FILING OF THE APPEAL Exhibit P4 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. Exhibit P5 TRUE COPY OF THE COMMUNICATION DATED 10.12.2021 ISSUED BY THE 1ST RESPONDENT Exhibit P6 TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY THE CENTRAL BOARD OF DIRECTTAXES DATED 31.07.2017 Exhibit P7 TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY THE CENTRAL BOARD OF DIRECTTAXES DATED 29.02.2016 Exhibit P8 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.664 OF 2022.PETITION NO.664 OF 2022. Exhibit P9TRUE COPY OF THE ORDER FOR THE YEAR 2018-19 DATED 02.08.2022 PASSED BY THE 3RD RESPONDENT. Exhibit P10TRUE COPY OF THE NOTICE DATED 13.07.2022 ISSUED BY THE 3RD RESPONDENT.13.07.2022 ISSUED BY THE 3RD RESPONDENT.