KAKANATIL ABDUL RAHIMAN SIRAJ MATHER, V. UNION OF INDIA,

WP(C)/4770/2019

AI Insights

The case involves Kakanatil Abdul Rahiman Siraj Mather, the petitioner, who challenged the assessment orders for the year 2010-2011. The appellate authority had issued a conditional stay order (Ext.P5), requiring the petitioner to deposit 20% of the demand to stay recovery proceedings and have the appeal heard on merits. The petitioner contended that the order was not a proper judicial order as it lacked reasoning and a prima facie opinion, making it non-judicial and non-verifiable. The respondents defended the appellate authority's discretion to issue such conditional orders, guided by departmental circulars. The High Court agreed with the petitioner, finding the order cryptic and lacking necessary judicial reasoning, and thus set aside the order and remanded the matter for fresh consideration.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 677906 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-03-2019
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: JOSE JACOB
• Keywords: Assessment Order; Conditional Order; Judicial discretion; Stay Petition; Writ petition

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940 WP(C).No. 4770 of 2019 PETITIONER/S: KAKANATIL ABDUL RAHIMAN SIRAJ MATHER NO.33/29A, THE PROMENADE, PADIVATTOM EDAPALLY, ERNAKULAM 682 019. BY ADV. SRI.JOSE JACOB RESPONDENT/S: 1 UNION OF INDIA,REPRESENTED BY SECRETARY MINISTRY OF FINANCE, DEPARTMENT OF REVENUE NORTH BLOCK, NEW DELHI 110 001. 2 ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1, AAYAKAR BHAVAN (NORTH BLOCK) KOZHIKODE 673 001. 3 COMMISSIONER OF INCOME TAX (APPEAL)-III 1ST FLOOR, POORNIMA, 28/243, NEAR MANORAMA JUNCTION, PANAMPILLY NAGAR, COCHIN 682 036. SC SRI JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4770 of 2019 2 JUDGMENT As seen from the Exts.P1 and P2 the petitioner challenged the assessment orders for the assessment year 2010-2011. The appellate authority passed the Ext.P5 conditional order in the stay petition. Assailing that order the petitioner has filed this Writ Petition. 2. The learned counsel for the petitioner has strenuously contended that the Ext.P5 cannot be termed 'an order'. It is a mere statement or directive from the authority that the petitioner should deposit 20% of the demand to have the recovery proceedings stayed and to have the appeal heard on merits. In this context, the learned counsel strenuously contends that though the appellate authority has a discretion to stay the proceedings conditionally, the discretion must be exercised in a judicially varifyable manner and that requires an order imbued with reasons. He also reminds the Court that time and time again the Courts have held that any judicial directive which is non- speaking cannot be sustained. 3. The learned Standing Counsel, on the other hand, submitted that the appellate authority has a discretion to pass conditional orders. He has also submitted that the authority has perhaps been guided by WP(C).No. 4770 of 2019 3 the Department Circulars in force. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents. 5. Ext.P5 order, cryptic as it is, reads as follows: “xxxxxxx The stay of demand requested by you is granted subject to your minimum payment of 20% of the demand raised by the Assessing Officer, till the time of disposal of first appeal in this office. xxxxxxx” 6. As contended by the learned counsel for the petitioner, the appellate authority may have exercised its discretion but the manner of that exercise has not been spelt out in the Ext.P5. No doubt, an interim order, especially in the nature of a stay order, does not require detailed reasoning for adjudication. At the same time, the order must spell out the authority's prima facie opinion of the matter. And that is lacking here. The circular, the Standing Counsel has relied on, as produced now before the Court, does not seem to bind the appellate authority, though it binds at the lower echelons. Under these circumstances, I set aside the Ext.P5 and remand the matter to the appellate authority for fresh consideration of the stay petition. At any rate, it is left open for the appellate authority either to WP(C).No. 4770 of 2019 4 pass orders after hearing the petitioner or dispose of the appeal itself as per its convenience. Until the appellate authority acts either way, the Department will defer coercive steps. Sd/- DAMA SESHADRI NAIDU JUDGE sd WP(C).No. 4770 of 2019 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ASSESSMENT ORDER RELATING TO AY 2010-11 EXHIBIT P2 COPY OF DEMAND NOTICE RELATING TO AY 2010-11 EXHIBIT P3 COPY OF APPEAL IN FORM 35 EXHIBIT P4 COPY OF PETITION FOR STAY OF COLLECTION OF TAX. EXHIBIT P5 COPY OF STAY PETITION ORDER EXHIBIT P6 COPY OF COMPUTATION OF TOTAL INCOME AND ITR ACKNOWLEDGEMENT-AY 2018-19. sd "