Wp(C)/40326/2023 Of Jacob Thomas v. Assistant Commissioner Of Income Tax

THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGHMONDAY, THE 4 DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 WP(C) NO. 40326 OF 2023 PETITIONER: JACOB THOMASAGED 78 YEARS1- MULAMOOTIL, KOZHENCHERRY, PATHANAMTHITTA, KERALA, PIN – 689641 BY ADVS.ALEXANDER JOSEPH MARKOSV.ABRAHAM MARKOSABRAHAM JOSEPH MARKOSISAAC THOMASSHARAD JOSEPH KODANTHARAJOHN VITHAYATHILAIBEL MATHEW SIBY RESPONDENTS: 1ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE 1, THIRUVALLA, PATHANAMTHITTA, PIN – 6896412COMMISSIONER OF INCOME TAX (APPEALS)NATIONAL FACELESS ASSESSMENT CENTRE, NEW DELHI, PIN – 110001 BY SRI. JOSE JOSEPH, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 04.12.2023, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: JUDGMENT This is the second round of litigation before thisCourt by the petitioner/assessee. Earlier, the assessee hadapproached this Court by filing W.P.(C.) No. 23096/2023for a direction to the Commissioner of Income Tax(Appeals), National Faceless Assessment Centre (NFAC),New Delhi to consider and dispose of appeal and staypetition instituted against the assessment order. ThisCourt disposed of the said writ petition vide judgmentdated 19.07.2023 with a direction to the Commissioner ofIncome Tax (Appeals) to consider and dispose of Ext.P3stay petition, in accordance with law and as expeditiouslyas possible, at any rate, within a period of three monthsfrom the date of receipt of a copy of that judgment, afteraffording an opportunity of being heard to the assessee. Itwas further stated that if the Commissioner of IncomeTax (Appeals) proposed to pass conditional order of stay,he should assign reasons for the same. 3 2.In compliance of the said judgment dated19.07.2023, the petitioner's stay application has beendecided vide Ext.P5 impugned order. Though theCommissioner of Income Tax (Appeals), (NFAC) hastaken note of the direction issued by this Court in itsjudgment dated 19.07.2023, however, in the impugnedorder no reason has been assigned for conditional stay of80% of the demand, in case the petitioner deposits 20%of the demand. In fact the Commissioner of Income Tax(Appeals), NFAC has just followed the Circular in thisrespect issued by the Central Board of Direct Tax. TheCommissioner of Income Tax (Appeals) has not assignedany independent reason for not granting the interimprotection to the petitioner. In fact, he has not drivenbeyond the Circular issued in this respect. If an assessee,during the pendency of the appeal, deposits 20% of thedemand, there is an automatic stay and if the AppellateAuthority just following the Circular, there is no W.P.(C.) No.40326/2023 4 adjudication on the stay application. Such a course will defeat the adjudicatory process of the interim stayapplications. 3. In view thereof, I allow this writ petition and set aside Ext.P5 order dated 22.11.2023 passed by thesecond respondent and remand the matter back to thesecond respondent to pass fresh orders, in accordancewith law, after assigning reasons in support of the orderpassed by them. Needless to say, the petitioner should beafforded an opportunity of hearing before the order ispassed on the stay petition. The writ petition is disposed of as above. Sd/- DCS/07.12.2023 DINESH KUMAR SINGH JUDGE APPENDIX PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF ASSESSMENT ORDER DATED 24/12/2019 EXHIBIT P2TRUE COPY OF APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 13/1/2020 EXHIBIT P3STAY PETITION FILED BEFORE THE 2ND RESPONDENT DATED 09/01/2020 EXHIBIT P3(A)STAY PETITION FILED BEFORE THE 2ND RESPONDENT DATED 10/02/2020 EXHIBIT P4JUDGMENT DATED 19.07.2023 IN W.P.(C) NO. 23069 OF 2023 EXHIBIT P5ORDER DATED 22.11.2023 ISSUED BY THE 2ND RESPONDENT