M/S.HOTEL AKASH @ ROHINI SHOPPING COMPLE V. DEPUTY COMMISSIONER OF INCOME TAX

WP(C)/25024/2010

AI Insights

The case involves M/S Hotel Akash & Rohini Shopping Complex, represented by its managing partner G. Soman, who filed a writ petition against the Deputy Commissioner of Income Tax and other officials due to grievances related to block assessments and subsequent recovery actions. The petitioners contested the assessments for the years 2002-03 to 2007-08, which were finalized by the 1st respondent. They filed appeals and sought condonation of delay and stay of tax collection, which were not addressed timely by the respondents, leading to coercive recovery actions such as property attachments and bank account freezes. The court did not delve into the merits of the case but focused on the procedural delays and directed the appellate authority to expedite the process.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 756037 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 30-09-2010
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; C K KARUNAKARAN
• Assessee Lawyers: TOMSON EMMANUEL
• Keywords: Appeal; Assessment; Coercive Recovery; Condonation of delay; Income Tax; Stay of collection
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 25024 of 2010(C) ------------------------ PETITIONER : ----------------- M/S.HOTEL AKASH & ROHINI SHOPPING COMPLEX, PULAMON, KOTTARAKKARA, KOLLAM DISTRICT-691 005, REPRESENTED BY ITS MANAGING PARTNER G. SOMAN. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): ------------------------ 1. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, MANNANIYYA COMPLEX, ANDAMUKKAM, KOLLAM-691 001. 2. THE DEPUTY COMMISSIONER OF INCOME TAX (APPEALS), I.S.PRESS ROAD, COCHIN-682 018. 3. THE COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, KANDANKULATHY BUILDING, M.G.ROAD, COCHIN-682 011. 4. THE TAX RECOVERY OFFICER, RANGE-I, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695 003. * ADDITIONAL R5 & R6 IMPLEADED 5. THE BRANCH MANAGER, DHANALAKSHMI BANK, NSS TALUK UNION BUILDING, KOTTARAKKARA – 691506. 6. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, PULAMON JUNCTION, KOTTARAKKARA – 691506. *IMPLEADED AS ADDITIONAL RESPONDENTS AS PER THE ORDER DATED 30/09/2010 IN I.A.13220/2010. R1 TO R4 BY ADV. SRI. JOSE JOSEPH, SC R5 BY ADV. SRI.C.K.KARUNAKARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2010, ALONG WITH WPC NO. 25087 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) Nos. 25024 & 25087 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 30th day of September, 2010 JUDGMENT Petitioner in W.P.(C) No.25087 of 2010 is the Managing Partner of the firm which is petitioner in W.P.(C) N.25024 of 2010. Block assessments for the years 2002-'03 to 2007-'08 were finalized against the petitioners by the 1st respondent, as per Ext.P1 series orders. Ext.P2(a) to P2(d) in W.P.(C) No.25087 of 2010 and Ext.P2(a) to P2(b) in W.P. (C) No.25024 of 2010 are the modified orders of assessments issued subsequent to waiver of interest granted under Ext.P2. The petitioner had preferred statutory appeals against all the orders of assessments, except in the case of assessment for the year 2002-'03 in W.P.C. No.25024 of 2010. Ext.P3 series are appeals in both these cases filed before the 2nd respondent. The appeals were filed along with petitions seeking condonation of delay, as per Ext.P4 series. The petitioners have filed Ext.P5 series applications seeking stay of collection of tax in W.P.(C) No. 25024/2010 & con. case. 2 dispute before the 3rd respondent Commissioner of Income Tax. Through Ext.P6 letter, the 3rd respondent forwarded the stay petitions to the Assessing Officer (1st respondent) and the petitioners were requested to approach the 1st respondent in this regard. 2. Complaint of the petitioner is that inspite of repeated approach as made, the 1st respondent is not passing any orders on Ext.P5 series stay petitions. According to the petitioners, more than 55% of the amounts covered under assessments were already paid. Present grievance of the petitioners is against the coercive steps of recovery being pursued, without taking note of pendency of the appeals and stay petitions, for realising the balance amounts. It is stated that immovable properties belonging to the petitioners were already attached under Ext.P9. Garnishee orders were also issued freezing the Bank Accounts of the petitioners. Under such circumstances, the petitioners seek direction for an early disposal of the appeals and till then to stay of all steps of recovery. W.P.(C) No. 25024/2010 & con. case. 3 3. Heard Sri.Jose Joseph learned standing counsel appearing for the respondents. It is submitted that the appeals in question were filed only after a long lapse of time and going by the contents of the affidavits filed in support of the applications seeking condonation of the delay, it can be found that the petitioners had in fact accepted the assessments. The appeals are filed only as an after thought, is the submission. The claim of the petitioners regarding payment of more than 55% of the tax amount, is also disputed. It is further contended that the 1st respondent is not in a position to consider Ext.P5 series stay petitions because there is no validly constituted appeals pending. As long as delay in filing the appeals are not condoned and the appeals are not registered, the 1st respondent is not bound to consider the stay applications, is the contention. 4. Learned counsel for the petitioners, per contra, contended that the action on the part of the respondents in not considering the statutory appeals or the stay petitions and at the same time proceeding with coercive steps of W.P.(C) No. 25024/2010 & con. case. 4 recovery, is highly unreasonable and arbitrary. It is submitted that due to attachments effected and freezing of the Bank Accounts, substantial prejudice has been caused to them to the extent of preventing the entire business activities. 5. Having considered the facts and circumstances and the submissions on both sides, I am of the view that a direction to the appellate authority to have an early disposal of the matter will meet the ends of justice. Since the matter is in seizin of the appellate authority, I am not proposing to consider any of the contentions on merits. 6. Therefore, the writ petition is disposed of directing the 2nd respondent to consider and dispose of Ext.P4 series petitions filed seeking condonation of delay, after affording an opportunity of hearing to the petitioners at the earliest possible, at any rate within a period of one week from the date of receipt of a copy of this judgment. 7. If delay in filing the appeals are condoned and if the appeals are registered, the 1st respondent shall consider W.P.(C) No. 25024/2010 & con. case. 5 and pass orders on Ext.P5 series stay petitions without any further delay, at any rate within a period of one week from the date of passing of the orders by the 2nd respondent, in accordance with the above direction. Further in case the delay is condoned, the 2nd respondent shall also take effective steps for disposal of the appeals at the earliest possible. 8. Till such time orders are passed by respondents 1 and 2 as directed above, status quo with respect to all the recovery steps shall be maintained, to the extent it relates to amounts covered under Exts.P2(a) to P2(d) in W.P.(C) No.25087 of 2010 and P2(a) and P2(b) in W.P.(C) No.25024 of 2010. However, it is made clear that the petitioners shall be permitted to operate the Bank Accounts with respect to which the garnishee orders have already been issued. It is also made clear that the attachment effected on the immovable properties will continue. C. K. ABDUL REHIM, JUDGE. mn. "