Wp(C)/3225/2022 Of Fci Oen Connectors Ltd v. The Additional/Joint/Deputy/Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 1 DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 WP(C) NO. 3225 OF 2022 PETITIONER/S: FCI OEN CONNECTORS LTD 29/2089, TRIPUNBITHURA ROAD, THYKOODAM, VYTTILA, KOCHI, KERALA-682 019, REPRESENTED BY ITS DIRECTOR, MR.G.RAJAMANI BY ADVS.JOSEPH MARKOSE (SR.) V.ABRAHAM MARKOS(K/354/1975)ABRAHAM JOSEPH MARKOSALEXANDER JOSEPH MARKOSSHARAD JOSEPH KODANTHARA RESPONDENT/S: 1THE ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAXINCOME TAX OFFICER, NATIONAL-E-ASSESSMENT CENTRE, NEW DELHI-110 001INCOME TAXINCOME TAX OFFICER, NATIONAL-E-ASSESSMENT CENTRE, NEW DELHI-110 001 2THE DEPUTY COMMISSIONER OF INCOME TAX,CORPORATE CIRCLE 1 (1), COCHIN-682 018CORPORATE CIRCLE 1 (1), COCHIN-682 018 3COMMISSIONER OF INCOME TAX (APPEALS),NEW DELHI-110 001NEW DELHI-110 001 NATIONAL FACELESS ASSESSMENT CENTRE, 4THE PRINCIPAL COMMISSIONER OF INCOME TAX,CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018 5THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX,NATIONAL E-ASSESSMENT CENTRE, NEW DELHI-110 001NATIONAL E-ASSESSMENT CENTRE, NEW DELHI-110 001 6UNION OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110 001, REPRESENTED BY ITS SECRETARY OTHER PRESENT: ADV.JOSE JOSEPH-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 01.02.2022, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: BECHU KURIAN THOMAS, J. ========================W.P.(C) No. 3225 of 2022 ======================== Dated this the 1[st] day of February, 2022 J U D G M E N T Petitioner seeks to quash Ext.P3 assessment order and Ext.P11 order issued under Section 220(6) of the IncomeTax Act, 1961. Petitioner has also prayed for setting asidethe Faceless Appeal Schemes of 2020 and 2021 on thereason that the said schemes do not permit application forstay to be filed. A further relief to consider Ext.P12 staypetition is also sought for. Aggrieved by the assessment order issued against by the assessment order issued against 2.Aggrieved by the assessment order issued against by the assessment order issued againstthe petitioner for the assessment year 2018-19, an appealhas been preferred by the petitioner before the 3[rd]respondent. During the pendency of the said appeal, theAssessing Officer directed the petitioner to deposit 20% ofthe disputed demand for stay of recovery of the balancetax, allegedly due from the petitioner. 3.The grievance of the petitioner raised in this writ petition arises from a difficulty to move a stay petitionbefore the Faceless Assessment Centre. Absence of a link toupload the stay petition stares at the petitioner to attemptfor an interim relief during the pendency of the appeal.Despite filing Ext.P12 stay petition before the 4[th]respondent, the same cannot be considered by theappellate authority, competent to consider the said staypetition under the present Faceless Appeal regime. 4.This court had already observed in WPC No.26935/2021 that, denial of an opportunity to file a staypetition in a pending appeal, due to the absence of a linkfor the assessee to upload such petitions causes prejudice.The right to seek a stay of the impugned order or recoveryproceedings pending the appeal is a part of the vested rightof appeal. The right to prefer an appeal will not becomplete, if there is no opportunity to try for obtaining astay pending appeal. Circumstances will be myriad, if such This court had already observed in WPC No. an opportunity is not granted to a litigant. 5.Since the petitioner has already preferredExt. P12 stay petition before the 4[th] respondent, I am of the view that this writ petition can be disposed of enabling thestay petition to be considered in the following manner; This court had already observed in WPC No. an opportunity is not granted to a litigant. 5.Since the petitioner has already preferredExt. P12 stay petition before the 4[th] respondent, I am of the view that this writ petition can be disposed of enabling thestay petition to be considered in the following manner; i.The 4[th] respondent shall transmit Ext.P12 staypetition to the 3[rd] respondent within a period of one monthfrom the date of receipt of a copy of this judgment. ii.Thereafter, on receipt of the stay petition, the 3[rd]respondent shall consider the application for stay filed bythe petitioner, as expeditiously as possible, at any rate,within a period of two months from the date of receipt ofthe stay petition transmitted from the 4[th] respondent. iii.Till a decision is taken all coercive proceedingsagainst the petitioner pursuant to Ext.P3 assessment ordershall be kept in abeyance. 6.I clarify that the stay petition in Ext.P12 shall bedisposed of within an outer limit of two months from the date of receipt of a copy of this judgment. The remainingquestions raised by the petitioner in the writ petition are left open for consideration at the appropriate time. The writ petition is disposed of. Sd/- LU BECHU KURIAN THOMASJUDGE APPENDIX OF WP(C) 3225/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SHOW CAUSE NOTICEDATED 08.02.2021 ISSUED BY THE 1STRESPONDENTDATED 08.02.2021 ISSUED BY THE 1STRESPONDENT EXHIBIT P2TRUE COPY OF THE NOTICE DATED09.04.2021 ISSUED BY THE 1ST RESPONDENT09.04.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P3TRUE COPY OF THE ASSESSMENT ORDER DATED16.04.2021 PASSED BY THE 1ST RESPONDENT16.04.2021 PASSED BY THE 1ST RESPONDENTEXHIBIT P4TRUE COPY OF THE JUDGMENT DATED06.12.2021 IN WPC NO.11389 OF 202106.12.2021 IN WPC NO.11389 OF 2021 EXHIBIT P5TRUE COPY OF THE RECTIFICATION PETITIONDATED 13.05.2021 MOVED BY THEPETITIONER BEFORE THE ASSESSING OFFICERDATED 13.05.2021 MOVED BY THEPETITIONER BEFORE THE ASSESSING OFFICER EXHIBIT P6TRUE COPY OF THE ORDER DATED 15.12.2021OF THE 1ST RESPONDENTOF THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE APPEAL DATED31.05.2021 FILED BEFORE THE 3RDRESPONDENT31.05.2021 FILED BEFORE THE 3RDRESPONDENT EXHIBIT P8TRUE COPY OF THE APPLICATION DATED08.09.2021 FILED BEFORE THE 1STRESPONDENT08.09.2021 FILED BEFORE THE 1STRESPONDENT EXHIBIT P9TRUE COPY OF THE STAY PETITION DATED12.01.2022 (WITHOUT ANNEXURES)FILEDBEFORE THE ASSESSING OFFICER12.01.2022 (WITHOUT ANNEXURES)FILEDBEFORE THE ASSESSING OFFICER EXHIBIT P10TRUE COPY OF THE CBDT GUIDELINES DATED29.02.201629.02.2016 EXHIBIT P11 TRUE COPY OF THE ORDER DATED 21.01.2022 PASSED BY THE 2ND RESPONDENT EXHIBIT P12 TRUE COPY OF THE STAY PETITION DATED27.01.2022 (WITHOUT ANNEXURE I) FILEDBEFORE THE 4TH RESPONDENT EXHIBIT P13 TRUE COPY OF THE FACELESS APPEALSCHEME, 2020 ISSUED BY NOTIFICATIONDATED 25.09.2020 EXHIBIT P14TRUE COPY OF THE FACELESS APPEALSCHEME, 2021 ISSUED BY NOTIFICATIONDATED 28.12.2021 // True Copy // PA To Judge