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November 11, 2023

Kerala High Court Says Income Tax Commissioner Is Not Binding by Administrative Circular

Kerala High Court Says Income Tax Commissioner Is Not Binding by Administrative Circular

Fact and issue of the case

The present writ petition has been filed impugning Ext.P4 notice dated 20.07.2023 and for a direction to the 1st respondent to reconsider Ext.P3 stay application.

After some arguments, learned Counsel for the petitioner submitted that an appeal against the assessment order is pending before the appellate authority, i.e., 2nd/3rd

The petitioner is granted one week time to file a stay application before the appellate authority concerned. The appellate authority is directed to consider the said application on its merit after taking into consideration Ext.P5 to Ext.P7 Office Memorandums issued by Central Board of Direct Taxes as well as the judgment of the Supreme Court in the case of Principal Commissioner of Income Tax-5 & Others LG Electronics India Private Limited [(2018) 18 SCC 447] wherein it has been observed as under;

Observation of the court

Having heard Shri. Vikramjit Banerjee, learned ASG appearing on behalf of the appellant, and giving credence to the fact that he has argued before us that the administrative circular will not operate as a fetter on the Commissioner since it is a quasi-judicial authority, we only need to clarify that in all cases like the present, it will be open to the authorities, on the facts of individual cases, to grant deposit orders of a lesser amount than 20%, pending appeal.”

With aforesaid, the present writ petition stands disposed of.

Pending interlocutory application/s, if any, in the writ petition stand/s dismissed.

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