Mallelil Industries Private ... vs Income Tax Officer
2022 Latest Caselaw 9553 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                       WP(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. NAIR
          TELMA RAJU
          EDATHARA VINEETA KRISHNAN
          MOHAMMED SAVAD K.
          P.K.BIJU



RESPONDENTS:

    1     INCOME TAX OFFICER,
          WARD 1 & TPS, TK ROAD, THIRUVALLA,
          KERALA -689 109.

    2     INCOME TAX OFFICER,
          NATIONAL FACELESS ASSESSMENT CENTRE,
          NATIONAL E-ASSESSMENT CENTRE - NEAC
          ROOM NO. 402, 2ND FLOOR, E-RAMP,
          NEAR GATE NO. - 10, JAWAHARLAL NEHRU STADIUM,
          DELHI - 110 003.

    3     COMMISSIONER OF INCOME TAX (APPEALS),
          NATIONAL FACELESS ASSESSMENT CENTRE,
          NATIONAL E-ASSESSMENT CENTRE - NEAC
          ROOM 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 ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27395 OF 2022

                                  2


                            JUDGMENT

The petitioner has approached this Court being

aggrieved by Ext.P9 order though which the petitioner's

application seeking stay of recovery pursuant to Ext.P1 order

of assessment has been rejected by the first appellate

authority.

2. The learned counsel appearing for the petitioner

states that the appeal along with a stay petition was filed

before the National Faceless Appeal Centre. It is submitted

that due to an oversight, the petitioner could not respond to a

notice issued by the National Faceless Appeal Centre to

upload submissions / arguments to be considered while

deciding the stay application. It is submitted that the officer,

therefore, proceeded to dismiss the stay application without

having the benefit of any submission on behalf of the

petitioner. It is submitted that the petitioner has a substantial

case on merits and it would be gross injustice if the petitioner

is called upon to remit the entire demand following dismissal

of the stay application.

3. The learned Standing Counsel appearing for the WP(C) NO. 27395 OF 2022

respondent Department points out that the stay petition was

considered pursuant to the directions issued by this Court in

Ext.P8 judgment and it was not open to the petitioner to say

that the petitioner could not respond to the notice issued by

the National Faceless Appeal Centre, due to an oversight. It

is submitted that the National Faceless Appeal Centre has

passed a very detailed and considered order and there is no

reason to interfere with that order in the facts and

circumstances of this case.

4. Having heard the learned counsel for the

petitioner and the learned Standing Counsel for the

Department, I am of the view that this writ petition can be

disposed of directing that the appeal filed by the petitioner be

heard and disposed of by the National Faceless Appeal Centre

within a time limit and granting stay of recovery subject to

the condition that the petitioner remits a sum equivalent to

20% of the demand in Ext.P1. I am inclined to take this view

on account of the fact that normally, in proceedings under

Section 220(6) of the Income Tax Act, before the Assessing

Officer, stay is granted on deposit of 20% of the demand in

terms of Ext.P7 Office Memorandum. This writ petition is,

therefore, disposed of directing the National Faceless Appeal WP(C) NO. 27395 OF 2022

Centre to consider and pass orders on Ext.P2 appeal after

affording an opportunity of hearing to the petitioner and in

accordance with law, within a period of six months from the

date of receipt of a certified copy of this judgment. Till such

time orders are passed on Ext.P2, the demands on the basis

of Ext.P1 order of assessment shall remain stayed on

condition 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 DK WP(C) NO. 27395 OF 2022

APPENDIX OF WP(C) 27395/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER FOR THE 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 DATED 26.08.2021 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 DIRECT TAXES DATED 31.07.2017

Exhibit P7 TRUE COPY OF THE OFFICE MEMORANDUM ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES DATED 29.02.2016

Exhibit P8 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.664 OF 2022.

Exhibit P9 TRUE COPY OF THE ORDER FOR THE YEAR 2018-19 DATED 02.08.2022 PASSED BY THE 3RD RESPONDENT.

Exhibit P10 TRUE COPY OF THE NOTICE DATED 13.07.2022 ISSUED BY THE 3RD RESPONDENT.