Chennithala Thriperumthura Service Co-operative Bank Ltd. V. Union of India and Central Board of Direct Taxes and Principal Chief Commissioner of Income Tax Kerala Region and Commissioner of Income Tax (Appeals) National Faceless Appeal Centre and Assessment Officer and Income Tax Officer

WA/457/2024

AI Insights

The case involves Chennithala Thriperumthura Service Co-operative Bank Ltd., which appealed against a judgment that required them to pay 10% of the assessed tax as a condition for the grant of stay on recovery proceedings pending the consideration of their stay application by the First Appellate Authority. The appellant had previously filed an appeal and a stay application with the First Appellate Authority against an assessment order. However, due to a demand notice received, they sought intervention from the High Court to avoid immediate payment and to allow the stay application to be considered without preconditions. The High Court found that there was no justification for the payment condition imposed by the learned Single Judge and thus set aside that part of the judgment.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 693746 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 27-03-2024
• Assessment Year: misc
• Other Referred Cases: W.P.(C) No. 35485 of 2023, W.P.(C) No. 40690/2022
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CYRIAC TOM
• Assessee Lawyers: GEORGE VARGHESE; MANU SRINATH; NIMESH THOMAS
• Keywords: Assessment Order; First Appellate Authority; Recovery proceedings; Stay Application; Writ Appeal

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 WA NO. 457 OF 2024 AGAINST THE JUDGMENT DATED 31.10.2023 IN WP(C) NO.35485 OF 2023 OF HIGH COURT OF KERALA APPELLANT/PETITIONER IN THE WRIT PETITION: CHENNITHALA THRIPERUMTHURA SERVICE CO-OPERATIVE BANK LTD. , REPRESENTED BY ITS SECRETARY, CHENNITHALA THRIPERUMTHURA SCB LTD. 3553, CHENNITHALA P.O., MAVELIKKARA, ALAPPUZHA, KERALA, PIN – 690105 BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH NIMESH THOMAS RESPONDENTS/RESPONDENTS IN THE WRIT PETITION: 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY IN THE MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI, PIN – 110001 2 THE CENTRAL BOARD OF DIRECT TAXES REPRESENTED BY ITS CHAIRMAN, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI, PIN – 110001 3 PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX KERALA REGION MINISTRY OF FINANCE, GOVERNMENT OF INDIA, CENTRAL REVENUE BUILDINGS, I. S. PRESS ROAD, KOCHI, PIN – 682018 4 COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS APPEAL CENTRE, NORTH BLOCK, DELHI, PIN – 110001 5 ASSESSMENT OFFICER ASSESSMENT UNIT, INCOME TAX DEPARTMENT, ALAPPUZHA, :2: WA No.457 of 2024 GENERAL HOSPITAL JUNCTION, KODIVEEDU, ALAPPUZHA, KERALA, PIN – 688011 6 INCOME TAX OFFICER INCOME TAX OFFICE, OFFICE OF ADDL. CIT, THIRUVALLA RANGE, VAISHNAVAM ARCADE, T K ROAD, THIRUVALLA, KERALA, PIN - 689101 BY ADV. SRI.CYRIAC TOM, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :3: WA No.457 of 2024 JUDGMENT Dr. A.K.Jayasankaran Nambiar, J. The petitioner in WP(C).No.35485 of 2023 is the appellant herein aggrieved by the judgment dated 31.10.2020 of the learned Single Judge in the Writ Petition. 2. Briefly stated that facts necessary for disposal of the Writ Appeal are as follows: The appellant who was aggrieved by an assessment order passed by the 5th respondent preferred an appeal before the First Appellate Authority, the 4th respondent herein. Along with the appeal, the appellant also preferred a stay application seeking a stay of recovery proceedings pursuant to the assessment order pending disposal of the first appeal. Since the appellant received Ext.P7 demand notice in the meanwhile, and he apprehended that he would not be able to move the stay application before the First Appellate Authority without depositing any amount, he approached this Court through the Writ Petition aforementioned. 3. The learned Single Judge who considered the Writ Petition found that inasmuch as the appellant had already moved the First :4: WA No.457 of 2024 Appellate Authority through an appeal and stay petition there was no warrant for interfering with the demand notice in the Writ Petition. He, therefore, relegated the appellant to his remedies before the First Appellate Authority but deemed it necessary to direct the appellant to pay 10% of the assessed tax as a condition for the grant of stay of recovery of the balance amounts confirmed against the appellant by the assessment order pending consideration of the stay application by the First Appellate Authority. It is aggrieved by the said direction that the appellant is now before us in this Writ Appeal. 4. We have heard Sri. George Varghese, the learned counsel for the appellant and Sri. Cyriac Tom, the learned Standing counsel for the Income Tax Department. 5. On a consideration of the facts and circumstances of the case and the submissions made across the bar, we are of the view that when the learned Single Judge had relegated the appellant to pursue his alternate remedy before the First Appellate Authority, and had further directed the First Appellate Authority to consider the stay application, there was no justification whatsoever for insisting on a payment of any amount pending consideration of the stay application by the First Appellate Authority. We therefore, set aside the impugned judgment of :5: WA No.457 of 2024 the learned Single Judge and dispose the Writ Appeal by directing the First Appellate Authority (the 4th respondent) to consider and pass orders on the stay applications preferred by the petitioner within a period of one month from the date of receipt of a copy of this judgment, after hearing the appellant. We make it clear that pending consideration and disposal of the stay application, further proceedings for recovery pursuant to Ext.P7 demand notice shall be kept in abeyance. The Writ appeal is disposed as above. Sd/- DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- SYAM KUMAR V .M. JUDGE mns :6: WA No.457 of 2024 APPENDIX OF WA 457/2024 PETITIONER ANNEXURES Annexure 1 A TRUE COPY OF THE JUDGMENT DATED 15.12.2022 IN W.P.(C) NO. 40690/2022 PASSED BY THE HONOURABLE HIGH COURT "