M/S. KERALA BOOKS AND PUBLICATIONS SOCIETY V. DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS)

WP(C)/5161/2017

AI Insights

The case involves the Kerala Books and Publications Society, a government-owned society, challenging an order (Exhibit P6) related to a tax demand for the assessment year 2008-09 under Section 147 of the Income Tax Act, 1961. The society had previously been granted a stay on the tax demand by the Assessing Officer, conditional upon the deposit of 15% of the demand, as per an Office Memorandum dated 29.02.2016. However, this order was reviewed, and a further payment of 20% was demanded, leading to the writ petition. The court considered the submissions and decided not to interfere with the review order, suggesting alternative remedies for the petitioner.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 755457 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-02-2017
• Assessment Year: misc
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: K ANAND; LATHA ANAND; M N RADHAKRISHNA MENON; JOSEPH PARACKAL
• Keywords: Appeal; Assessment; Exemptions; Income Tax; Stay Petition
• Section: 147; 156; 220(6)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938 WP(C).No. 5161 of 2017 (U) -------------------------- PETITIONER: ----------- M/S.KERALA BOOKS AND PUBLICATIONS SOCIETY, KAKANAD, ERNAKULAM-682030, REPRESENTED BY ITS MANAGING DIRECTOR. BY SRI.K.ANAND (SENIOR ADVOCATE) ADVS.SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON SRI.JOSEPH SEBASTIAN (PARACKAL) RESPONDENTS: ------------ 1. DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS), OFFICE OF THE DEPUTY COMMISSIONER INCOME TAX (EXEMPTIONS), CR BUILDING, IS PRESS ROAD, KOCHI-682018. 2. THE COMMISSIONER OF INCOME TAX(APPEALS), OFFICE OF THE COMMISSIONER OF INCOME TAX(APPEALS), IS PRESS ROAD, KOCHI-682018. BY SRI.JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mbr/ WP(C).No. 5161 of 2017 (U) --------------------------- APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1: TRUE COPY OF THE ASSESSMENT ORDER DATED 22.03.2016. EXHIBIT P2: TRUE COPY OF DEMAND NOTICE DATED 22.03.2016,UNDER SECTION 156 OF THE INCOME TAX ACT 1961. EXHIBIT P3: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER. EXHIBIT P4: TRUE COPY OF THE ORDER DATED 26.07.2016 OF THE 1ST RESPONDENT. EXHIBIT P5: TRUE COPY OF THE EXTENSION PETITION DATED 31.01.2017. EXHIBIT P6: TRUE COPY OF PROCEEDINGS OF THE 1ST RESPONDENT DATED 8.2.2017. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE mbr/ K. Vinod Chandran, J ---------------------------------------- W.P.(C).No.5161 of 2017-U ----------------------------------------- Dated this the 21st day of February, 2017 JUDGMENT The petitioner, a Society fully owned by the Government of Kerala, challenge Exhibit P6 order. 2. For the assessment year 2008-09, a demand was raised against the petitioner on assessment being completed, under Section 147 of the Income Tax Act, 1961 [for brevity “the Act”]. The assessee filed an appeal before the Commissioner of Income Tax (Appeals). However, the assessee did not file a stay petition before the appellate authority and elected to file an application under Section 220(6) of the Act before the Assessing Officer itself. The Assessing Officer granted stay on condition of deposit of 15% of the demand, as is specified in the Office Memorandum [for brevity “OM”] dated 29.02.2016; which was in partial modification of the Instruction No.1914 dated 21.03.1996. The assessee contends that the order now passed, in review of the earlier order and directing a further payment of 20%, is only on the WP(C) No.5161 of 2017 - 2 - ground that the action plan of the Department mandates taking up of appeals and stay petitions in accordance with the procedure prescribed. There is no ground that the assessee had not co-operated in the disposal of the appeal, is the contention. 3. The learned Standing Counsel for Government of India (Taxes), however, refers to the specific provision in the O.M., which is as below: “(E) In granting stay, the Assessing Officer may impose such conditions as he may think fit. He may, inter alia,- xxx xxx xxx (ii) reserve the right to review the order passed after expiry of reasonable period (say 6 months) or if the assessee has not co-operated in the early disposal of appeal, or where a subsequent pronouncement by a higher appellate authority or court alters the above situations; xxx xxx xxx” Hence, the Assessing Officer could either review the order after expiry of a reasonable period or on finding the assessee to have not co-operated in disposal of the appeal. It is also submitted that there is a remedy available to the assessee to approach the Principal Commissioner against Exhibit P6 order or file a stay application before the Appellate Authority. WP(C) No.5161 of 2017 - 3 - 4. Considering the submissions of the learned Standing Counsel for Government India (Taxes), this Court, as of now, is not inclined to interfere with Exhibit P6. However, the petitioner would be left remedy to approach either the Appellate Authority or the Principal Commissioner for further stay of the demand; for which there shall be a status quo maintained for a period of one month from today. Reserving such liberty, the writ petition would stand closed with the further direction to maintain status quo for the period specified above. Sd/- K.Vinod Chandran Judge. vku/- [ true copy ] "