IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942 WP(C).No.10614 OF 2020(B) PETITIONER/S: SHEEJA PILLAI PROPRIETRESS, V FOR U, VII/738-C, AYLARA P. O., YEROOR, KOLLAM DISTRICT, PIN - 691 306. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) RESPONDENT/S: 1 INCOME TAX OFFICER WARD -3, INCOME TAX OFFICE, AAYAKAR BHAVAN, NEAR KARBALA JN., RAILWAY STATION ROAD, KOLLAM, PIN - 691001. 2 COMMISSIONER OF INCOME TAX (APPEALS) KOWDIAR, THIRUVANANTHAPURAM - 695 003. OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.10614 OF 2020(B) 2 JUDGMENT Dated this 2nd day of June 2020 petitioner, who is assessee under Income Tax Act filed income tax return for assessment year 2017-18. 1st respondent, however assessed petitioner under Act by rejecting return and estimated income as Rs.37,84,262/- and raised demand of Rs.47,35,787/-. petitioner was also served with notice under Section 142(1) by 1st respondent ie., assessment order, Ext.P1 dated 3.12.2019. Aggrieved by Ext.P1 order, as rectified by Ext.P1(a), petitioner preferred appeal, Ext.P2 before respondent, Commissioner of Income Tax (Appeals), Kowdiar, Thiruvananthapuram. Section 226 of Income Tax Act empowers assessing officer to stay demand. Since petitioner did not deposit any amount, provisions of sub section (3) of Section 226 of 1962 Act was invoked by issuing communication of garnishee vide Ext.P5 dated 6th of March 2020. WP(C).No.10614 OF 2020(B) 3 2. Mr. S.Anilkumar, learned counsel appearing on behalf of petitioner submits that though petitioner should have been advised to prefer stay application in pending appeal as necessity to file application under Section 226 before Assessing Officer has become futile on account of garnishee notice Ext.P5, petitioner may be granted sufficient time to file stay application enabling him to press for stay before appellate authority, in accordance with law. 3. Mr. Christopher Abraham, learned counsel appearing on behalf of Income Tax Department submits that necessity to issue garnishee notice was on account of fact that petitioner neither filed return nor gave explanation with regard to deposit and Government's revenue had to be recovered in manner as noticed above in case assessee fails to pay off same. WP(C).No.10614 OF 2020(B) 4 4. Having heard learned counsel for parties and appraised paper book, I am of view that petitioner was not advised properly in seeking stay of demand by submitting application Ext.P3 dated 18 th of March 2020 as it is post issuance of garnishee notice dated 6th of March 2020. In fact, application for stay or simple prayer for stay along with pending appeal ought to have been preferred before 2 nd respondent. Be that as it may, petitioner has undertaken to file application for stay and as there is lock down owing to COVID 19, pandemic, I grant three weeks time to petitioner to file application for stay before 2 nd respondent. In case such application is filed, 2 nd respondent would decide application for stay within one month thereafter, after affording opportunity of hearing to parties and in accordance with law. Till such time, notice Ext.P5 dated 6 th of March 2020 is ordered to be kept in abeyance. It is made clear that WP(C).No.10614 OF 2020(B) 5 interim stay is till disposal of interim application and not beyond. writ petition stands stands disposed of. Sd/- AMIT RAWAL sab JUDGE WP(C).No.10614 OF 2020(B) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER DATED 3.12.2019 ISSUED BY 1ST RESPONDENT FOR YEAR 2017-18. EXHIBIT P1 (a) COPY OF RECTIFICATION ORDER DATED 27.02.2020 ISSUED BY 1ST RESPONDENT FOR YEAR 2017-18. EXHIBIT P2 COPY OF APPEAL MEMORANDUM AGAINST EXT.P1 FILED BEFORE 2ND RESPONDENT. EXHIBIT P3 COPY OF STAY PETITION FILED BY PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P4 COPY OF NOTICE DATED 22.01.2020 ISSUED BY 1ST RESPONDENT. EXHIBIT P5 COPY OF NOTICE DATED 6.03.2020 ISSUED BY 1ST RESPONDENT. Sheeja Pillai v. Income-tax Officer Ward-3, Kollam / Commissioner of Income-tax (Appeals), Thiruvananthapuram