Wp(C)/4585/2021 Of Nenco Gas Service v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942WP(C).No.4585 OF 2021(W) PETITIONER/S: M/S NENCO GAS SERVICE,15/519 AND 520, NENCO GAS SERVICE, MANNANCHERRY, ALAPUZHA-688 538, REPRESENTED BY ITS PARTNER SHRI. ARUN RAJ PILLAI BY ADVS.SRI.S.MUHAMMED HANEEFFSRI.M.H.ASIF ALISMT.DIVYA RAVINDRAN RESPONDENT/S: 1THE ASSISTANT COMMISSIONER OF INCOME TAX,CENTRAL CIRCLE, KOLLAM, AYAKAR BHAVAN, RAILWAY STATION ROAD, KOLLAM-691 001. 2THE COMMISSIONER OF INCOME TAX (APPEALS),28/243, “POORNIMA”, PANAMPILLY NAGAR, COCHIN-682 036. SC,IT- SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 JUDGMENT Dated this the 23rd day of February 2021 Heard both sides as learned Standing Counselappearing for the respondents has waived service andaccepted the notice. 2. Petitioner has challenged the order passed onhis stay application by The Commissioner of Income Tax(Appeals), the 2[nd] respondent herein. Learned Counselfor the petitioner argued that the impugned orderrejecting the stay petition is suffering from totalnon application of mind in as much as it is notdisclosing any reason for rejection of request forstay to the assessment order. As against this,learned Counsel appearing for the respondents drew myattention to paragraph 4 of the impugned order andsubmits that the said paragraph gives reason for therejection. 3. I have considered the submissions so advancedand perused the relevant exhibits. Paragraph 4 of the 3 impugned order rejecting the stay application reads thus: “4. The submissions made are carefullyconsidered. The orders of the AssessingOfficer are perused. The Assessing Officerhas passed a speaking order regarding theadditions made. There is no judicialprecedentsquarelyapplicabletotheappellant's case, in respect of the additionsmade by the Assessing Officer. The appellanthas not made out a satisfactory case forgrant of stay.” 4. It is trite that the reasons are heart and soulof the order passed by the quasi judicial authority.Perusal of paragraph 4 which is the only paragraph bywhich the appellate authority has considered therequest for grant of stay, does not disclose any reasonto the facts of the case. In a mechanical manner, therequest for stay made by the petitioner came to berejected. 5. It is noted that this Court by judgment in W.P. 4 (C).No.5756/2020, had directed the 2[nd]respondentauthority to consider and dispose of the stayapplication, Ext.P3, as early as possible andpreferably within two months from the date of receiptof a copy of the judgment, and till then, therespondents were directed not to take coercive stepsfor recovery of the amount determined in the orderunder the appeal, for ten weeks. That is how theimpugned order came to be passed by the 2[nd]respondent. The same cannot be sustained as it isdevoid of any reasons for rejecting the request forstay to the assessment order. Therefore, thefollowing order. respondent 6. The Writ Petition is allowed and the impugnedorder at Ext.P5 rejecting the stay petition filed bythe petitioner is quashed and set aside. The matteris remitted to the 2[nd]respondent for freshconsideration and for deciding the same after hearingthe parties and by passing the reasoned order on thesaid petition. Till disposal of the stay petition,the respondents are directed not to take any coercive 5 steps to recover the amount determined in the assessment order under the appeal. The writ petition is allowed accordingly. Sd/- A.M.BADAR JUDGE uu 23.2.2021 6 APPENDIX PETITIONER'S/S EXHIBITS: respondent 6. The Writ Petition is allowed and the impugnedorder at Ext.P5 rejecting the stay petition filed bythe petitioner is quashed and set aside. The matteris remitted to the 2[nd]respondent for freshconsideration and for deciding the same after hearingthe parties and by passing the reasoned order on thesaid petition. Till disposal of the stay petition,the respondents are directed not to take any coercive 5 steps to recover the amount determined in the assessment order under the appeal. The writ petition is allowed accordingly. Sd/- A.M.BADAR JUDGE uu 23.2.2021 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 30.12.2019 PASSED BY THE 1ST RESPONDENT FORAY 2017-18 ALONG WITH DEMAND NOTICE AND COMPUTATION OF INCOME.30.12.2019 PASSED BY THE 1ST RESPONDENT FORAY 2017-18 ALONG WITH DEMAND NOTICE AND COMPUTATION OF INCOME. EXHIBIT P2TRUE COPY OF THE MEMORANDUM OF APPEAL DATED01.02.2020 FOR AY 2017-18 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.01.02.2020 FOR AY 2017-18 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3TRUE COPY OF THE STAY PETITION DATED 01.02.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY 2017-18.01.02.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY 2017-18. EXHIBIT P4TRUE COPY OF THE JUDGMENT DATED 27.02.2020 IN WPC NO.5756 OF 2020.IN WPC NO.5756 OF 2020. EXHIBIT P5TRUE COPY OF THE STAY ORDER FOR THE ASSESSMENT YEAR 2017-18 PASSED IN THE STAY PETITION VIDE ITA NOS.39/KLM/CIT(A)-III/2019-20 DATED 29.01.2021.ASSESSMENT YEAR 2017-18 PASSED IN THE STAY PETITION VIDE ITA NOS.39/KLM/CIT(A)-III/2019-20 DATED 29.01.2021. EXHIBIT P6TRUE COPY OF THE CIRCULAR DATED 29.02.2016 ISSUED BY CBDT.ISSUED BY CBDT. EXHIBIT P6 ATRUE COPY OF THE CIRCULAR DATED 31.07.2017 ISSUED BY CBDT.ISSUED BY CBDT.