M/S.GEO FOUNDATIONS & STRUCTURE PVT. LTD. V. THE ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/25879/2016

AI Insights

The case involves M/S Geo Foundations & Structure Pvt. Ltd., the petitioner, challenging the conditional stay order issued by the Appellate Authority regarding a tax demand of Rs.3,48,23,128. The petitioner argued that the Appellate Authority failed to consider their application for stay with due diligence and did not address the arguments presented in the appeal. The court reviewed the Appellate Authority's decision, which had been based on the need for further verification of details concerning additions/disallowances amounting to over 19 crores, and found no grounds to overturn the decision.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 768842 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 08-08-2016
• Assessment Year: misc
• Other Referred Cases: W.P(C).No.9504/2016
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: P R MILTON; K J CHACKOCHAN
• Keywords: Appeal proceedings; Conditional stay; Financial hardship; Prima facie case; Tax demand

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY , THE 8TH DAY OF AUGUST 2016/17TH SRAV ANA, 1938 WP(C).No. 25879 of 2016 (H) ------------------------------------------- PETITIONER(S) : -------------------------- M/S.GEO FOUNDATIONS & STRUCTURE PVT. LTD., 6TH FLOOR, ALPHA PLAZA, K.P VALLON ROAD, KADAV ANTHARA, COCHIN 682 020, REPRESENTED BY ITS DIRECTOR K.N MADHUSUDHANAN PILLAI, AGED 56 YEARS, S/O. P. KUNJURAMAN PILLAI. BY ADVS. SRI.P.R.MILTON SRI.K.J.CHACKOCHAN RESPONDENT(S) : ----------------------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE -1(2), 4TH FLOOR, CENTRAL REVENUE BUILDING, I.S PRESS ROAD, KOCHI 682 018. 2. COMMISSIONER OF INCOME TAX(APPEALS)- II, ERNAKULAM- 682 018. BY ADV. SRI.JOSE JOSEPH, S.C THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Msd. WP(C).No. 25879 of 2016 (H) ----------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS : EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 11.03.2015. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER DATED 23.03.2015. EXHIBIT P3 TRUE COPY OF THE APPEAL SUBMITTED BEFORE THE SECOND RESPONDENT APPELLATE AUTHORITY. EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN W.P(C).NO.9504/2016 DATED 18.03.2016. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 29.06.2016 ISSUED BY THE SECOND RESPONDENT. RESPONDENT(S)' EXHIBITS : NIL //TRUE COPY// P.A.TO JUDGE. Msd. A.M.SHAFFIQUE, J. --------------------------------- W.P (C) No. 25879 of 2016 --------------------------------- Dated this the 08th day of August, 2016 J U D G M E N T Petitioner challenges Exhibit P5 by which an application for stay had been allowed on condition of the petitioner remitting 40% of the total tax demanded amounting to Rs.3,48,23,128/- payable in six equal instalments starting 31.07.2016 till 31.12.2016. The main contention urged by the petitioner is that though there was a direction by this Court as per judgment dated 18.03.2016 in W.P. (C) No. 9504/2016 to consider the application for stay in accordance with law, the Appellate Authority failed to consider the same with due application of mind. It is submitted that the arguments raised in the appeal have not been dealt with by the Appellate Authority and it had not even come to a conclusion that a prima facie case exists for the grant of stay. According to the petitioner, sufficient materials had been produced to indicate that there was a prima facie case for grant of an absolute stay and without referring to any of such materials this conditional order had been passed. W.P (C) No. 25879 of 2016 2 2. A perusal of Exhibit P5 order would show that the Appellate Authority proceeded on the basis that it requires time to verify the details with regard to the additions/disallowances of more than 19 crores which can be done during the appeal proceedings. This procedure, according to the learned counsel, is absolutely baseless. 3. Heard the learned Standing Counsel appearing for the respondents. He submits that the Appellate Authority has arrived at a proper conclusion after going into the factual aspects involved in the matter. There is no reason for this Court to interfere with the grant of conditional stay. 4. Perusal of Exhibit P5 order would show that the Appellate Authority had considered the matter in the following manner: “3. In the petition for stay of demand the appellant has stated that it would get substantial relief and also pleaded for stay of collection of demand till the disposal of the appeal since the recovery of the huge liability would create considerable financial hardship. With regard to the total additions/disallowances of Rs.19,50,59,894/-, the appellant itself has admitted that because of the sudden demise of the Managing Director Sri.Praphulla Kumar, many of the queries sought by W.P (C) No. 25879 of 2016 3 the Assessing Officer could not be explained in time. The appellant has also claimed that the additions made by the Assessing Officer are legally and factually incorrect. However the Assessing Officer has discussed the issues elaborately and made the dis allowances and additions. In the assessment order, the Assessing Officer has also stated that the assessment was completed on the basis of the material available and in the light of the non- compliance by the assessee, despite grant of sufficient opportunities. 4. However the issues pertaining to the total additions/disallowances of Rs.19,50,59,894/- require further verifications in detail to arrive at a conclusion and it could be done only during the appeal proceedings.” 5. It is contended by the learned counsel for the petitioner that the most of the additions/disallowances are absolutely baseless. Materials are available in the appellate stage to indicate that the unaccounted amounts shown are far less than what had been stated by the Assessing Officer. 6. When the Appellate Authority had considered the issues and come to a finding that the Assessing Officer had considered the matter on the basis of the material available and in the light of the non compliance by the assessee, after giving sufficient opportunities, and it is further observed that W.P (C) No. 25879 of 2016 4 the contentions urged could be verified in detail during the course of appeal proceedings, I do not think that this Court will be justified in interfering with the aforesaid order. True that all the facts as narrated by the petitioner in the writ petition has not been indicated in the impugned order, but the fact remains that the Appellate Authority had gone into the contentions raised and had come to a conclusion that the materials placed on record can be considered only during the hearing of appeal. 7. Hence, I do not think that it is appropriate for this Court to interfere with Exhibit P5 order at this stage of proceedings. 8. Learned counsel for the petitioner, however, seeks for an early disposal of the appeal. Nothing prevents the Appellate Authority to consider the appeal on merits as and when it is ripe for hearing. All endeavours shall be made by the Appellate Authority to dispose of the appeal as expeditiously, as possible. With the above observation, the writ petition is dismissed. A.M.SHAFFIQUE JUDGE DMR/- "