AJU JOHN ZACHARIAH, V. THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX,

WP(C)/3132/2020

AI Insights

In the case of Aju John Zachariah vs. The Principal Chief Commissioner of Income Tax and others, the petitioner challenged the enforcement of an assessment order and sought a stay on the demands made under this order. The petitioner also requested the appellate authorities to expedite the hearing of their statutory appeal and stay petition. The court referenced a previous Division Bench decision which held that payment of a portion of the demanded amount should not be a condition for granting a stay on the recovery of the disputed tax. Following this precedent, the court ordered that the enforcement of the tax demand be paused until the appellate authority makes a decision on the appeal.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 695654 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-02-2020
• Assessment Year: misc
• Other Referred Cases: Mavilayi Service Co-operative Service Bank Ltd. v. Commissioner of Income Tax, Calicut [2019 (2) KHC 287], W.A.No. 1529/2019, W.P.(C).No.523/2020
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: ASWIN GOPAKUMAR; ANWIN GOPAKUMAR; K AMAL NATH NAIK; RENOY VINCENT; NIRANJAN SUDHIR; FEMY ANN JOHNSON
• Keywords: Assessment Order; Income Tax; Statutory Appeal; Stay of Operation; Writ of Mandamus
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941 WP(C).No.3132 OF 2020(N) PETITIONER/S: AJU JOHN ZACHARIAH, AGED 45 YEARS VELAMPARAMPIL HOUSE, PERUNGALA.P.O, KAYAMKULAM, ALAPPUZHA, KERALA-690502 BY ADVS. SRI.ASWIN GOPAKUMAR SRI.ANWIN GOPAKUMAR SRI.K.AMAL NATH NAIK SRI.RENOY VINCENT SRI.NIRANJAN SUDHIR SMT.FEMY ANN JOHNSON RESPONDENT/S: 1 THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, IS PRESS RD, KACHERIPADY, ERNAKULAM, KERALA-682018 2 THE COMMISSIONER OF INCOME TAX(APPEALS), OFFICE OF THE COMMISSIONER OF INCOME TAXZ, LAL BAHADUR SASTRI ROAD, PUBLIC LIBRARY BUILDING, KOTTAYAM-686001 3 INCOME TAX OFFICER WARD -I, AND TPS, INCOME TAX OFFICE, ARATTUKULANGARA COMPLEX, A.N. PURAM, ALAPPUZHA-688011 OTHER PRESENT: SRI.JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.3132 OF 2020(N) 2 ALEXANDER THOMAS, J. ----------------------------------------- W.P.(C.) No. 3132 of 2020 ----------------------------------------- Dated this the 5th day of February, 2020 JUDGMENT The prayers in the above Writ Petition (Civil) are as follows: (i) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to not enforce the demands under Exts.P1 assessment order in any manner and (ii) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the 2nd and 3rd respondents to pass orders on Ext.P3 statutory appeal and Ext.P5 petition for stay of operation of the impugned orders after affording reasonable opportunity to the petitioner to present their case, at the earliest. (iii) to grant such other reliefs as this Hon'ble Court may deem fit, necessary, proper and just in the peculiar facts and circumstances of the case and (iv) to allow this Writ petition (Civil) with costs to the petitioner.” 2. Heard Sri. Aswin Gopakumar, learned counsel appearing for the petitioner and Sri. Jose Joseph, learned Standing Counsel for the Income Tax Department appearing for the respondents. 3. In similar circumstances, a Division Bench of this Court in the judgment dated 1.7.2019 in W.A.No. 1529/2019 has taken the view that the insistence for payment of a portion of the amount demanded, as a condition for grant of stay, need not be insisted in cases as in the instant one and that the Division Bench, for reasons stated therein, has ordered that it is for the appellate authority to take a decision on the statutory WP(C).No.3132 OF 2020(N) 3 appeal at the earliest and that until the final decision is rendered by the appellate authority in the statutory appeal, coercive steps for recovery and collection of the impugned tax shall be kept in abeyance in the light of the dictum laid down by the Full Bench of this Court in Mavilayi Service Co-operative Service Bank Ltd., v. Commissioner of Income Tax, Calicut [2019 (2) KHC 287]. The Division Bench in the abovesaid judgment dated 1.7.2019 in W.A.No. 1529/2019 has also dealt with the reasons for taking such a view for making such an interim arrangement pending disposal of the main appeal by the statutory appellate authority concerned. The said decision of the Division Bench of this Court in W.A.No. 1529/2019 has been followed by this Court in a series of other cases as in the judgment dated 10.1.2020 in W.P.(C).No.523/2020. Accordingly, following the line of directions and orders already passed by the Division Bench of this Court in the judgment dated 1.7.2019 in W.A.No. 1529/2019 as well as various other judgments rendered by this Court, following the said directions and orders of the Division Bench in the matter of the interim arrangement till the disposal of the main statutory appeal, etc., following orders and directions are issued: It is ordered that the 2nd appellate authority shall ensure final disposal of Ext.P3 appeal after affording reasonable opportunity of being heard to the petitioner without much delay and within a reasonable time limit that may be fixed appropriately by the said appellate WP(C).No.3132 OF 2020(N) 4 authority. However, in the interest of justice it is ordered that until final orders are passed disposing of Ext.P3-appeal, all coercive steps for the enforcement of the assessment order impugned in the abovesaid appeal shall be kept in abeyance. With these observations and directions, the Writ Petition (Civil) stands finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE SKS WP(C).No.3132 OF 2020(N) 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE STATEMENT ORDER PASSED BY THE 3RD RESPONDENT FOR THE YEAR 2017-18 EXHIBIT P2 A TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 3RD RESPONDENT EXHIBIT P3 A TRUE COPY OF THE ELECTRONICALLY GENERATED FORM NO.35 OBTAINED ONE FILING OF THE APPEAL FOR THE PERIOD 2017-18 EXHIBIT P4 A TRUE COPY OF THE STATEMENT OF FACT AND GROUNDS IN THE STATUTORY APPEAL EXHIBIT P5 A TRUE COPY OF THE STAY PETITION FILED IN THE STATUTORY APPEAL EXHIBIT P6 A TRUE COPY OF THE LETTER THREATENING RECOVERY PROCEEDINGS ISSUED BY THE 3RD RESPONDENT "