M/S. HIC ABF SPECIAL FOODS V. UNION OF INDIA

WA/863/2017

AI Insights

The case involves M/S. HIC-ABF Special Foods Private Limited, which appealed against the judgment of the learned Single Judge concerning an order from the Income Tax Appellate Tribunal, Cochin Bench. The Tribunal's order required the appellant to pay 15% of the outstanding tax arrears for a stay on the tax demand for the assessment year 2012-2013. The appellant contested this condition in a writ petition, which was dismissed by the learned Single Judge, leading to the present appeal. The High Court found that the appellant was bound by the consent given before the Tribunal and could not challenge the condition in a writ petition.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 722349 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 02-05-2017
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: M NAMBIAR; P GOPINATH; K MATHAI; JOSON MANAVALAN; KURYAN THOMAS; RAJAKANNAN
• Keywords: Assessment Year; Comparable company; Conditional stay; Controlled Transaction; Financial stringency; Income Tax
• Section: 10703

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 2ND DAY OF MAY 2017/12TH V AISAKHA, 1939 WA.No. 863 of 2017 () IN WP(C).10703/2017 ------------------------------------------- AGAINST THE JUDGMENT DATED 28.03.2017 IN WP(C) NO.10703/2017 of HIGH COURT OF KERALA APPELLANT(S)/PETITIONER IN THE WP(C): ------------------------------------ M/S. HIC-ABF SPECIAL FOODS PRIVATE LIMITED, 11/8, PROJECT COLONY ROAD, INDUSTRIAL DEVELOPMENT AREA, AROOR POST, ALAPPUZHA -688 534. REPRESENTED BY ITS MANAGING DIRECTOR - CHERIAN KURIAN. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.RAJA KANNAN RESPONDENT(S)/RESPONDENTS WP(C): -------------------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI - 110 001. 2. THE INCOME TAX APPELLATE TRIBUNAL, KENDRIYA BHAV AN, KAKKANAD, - 682 037, REPRESENTED BY ASSISTANT REGISTRAR. 3. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-1(2), KOCHI - 682 018. BY SRI.JOSE JOSEPH, STANDING COUNSEL FOR INCOME TAX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.HARIPRASAD & A.M.BABU, JJ. -------------------------------------- W.A.No.863 of 2017 -------------------------------------- Dated this the 2nd day of May, 2017 JUDGMENT Hariprasad, J. Appellant moved a writ petition before the learned Single Judge challenging Ext.P10 order passed by the Income Tax Appellate Tribunal, Cochin Bench. The order related to the assessment year 2012- 2013. The operative portion of the order reads as follows: “We have heard the rival submissions and perused the record. It is true that the assessee's case was considered by the Tribunal for the immediate assessment year and hence, the issue seems to be covered by the said order of the Tribunal. The case of the assessee is that Accelerated Freeze Dried Company cannot be taken as a comparable company because its transactions are only with its AE and hence it is controlled transaction. Whether ICF, USA continues to be an AE of the Accelerated Freeze W.A.No.863 of 2017 2 Dried Company for the current assessment year is a matter to be examined. Since financial stringency has not been made out in this case, we are of the view that the assessee has made a case for only conditional stay. On a suggestion by the Bench that the assessee has to effect atleast a part payment, the LD.AR agreed to pay 15% of the demand. Accordingly, the assessee is directed to pay 15% of the outstanding tax arrears on or before 30/03/2017. If the assessee pays the said amount, before 30/03/2017, there shall be stay for a period of six months or till the disposal of the appeal whichever is earlier. It is ordered accordingly.” 2. Learned Single Judge, after hearing both sides and considering merit of the writ petition, disposed of the petition finding that the appellant/assessee having agreed before the Tribunal to pay 15% of the demand cannot file a writ petition challenging the condition imposed. Feeling aggrieved, the assessee has come up in appeal. 3. Heard the learned counsel for the appellant and the Standing Counsel for Revenue. W.A.No.863 of 2017 3 4. After hearing both sides, we are of the view that the learned Single Judge is right in finding that Ext.P10 order was passed on consent and therefore the assessee is precluded from challenging its correctness in a proceeding under Article 226 of the Constitution of India. 5. Learned counsel for the appellant submitted that the Income Tax Appellate Tribunal has given time for clearing 15% of the liability till 30.03.2017. Learned Single Judge has extended the time till 30.04.2017. Learned counsel seeks extension of further time to clear off the liability. 6. Learned Standing Counsel opposed the extension saying that the appellant has already enjoyed the benefit of one extension. Considering the facts and circumstances, we, as a last chance, grant time till 30.05.2017 to clear off the liability. It is made clear that no further time will be granted. Till 30.05.2017 the Revenue shall not initiate any coercive steps against the appellant. A.HARIPRASAD, JUDGE. A. M.BABU, JUDGE. cks "