KERALA STATE FINANCIAL ENTERPRISES LIMITED V. UNION OF INDIA

WP(C)/28010/2023

AI Insights

The case involves Kerala State Financial Enterprises Limited challenging an order by the Commissioner of Income Tax (TDS), Kochi, which required the petitioner to deposit 20% of the assessed tax and liabilities to stay the remaining demand. The petitioner argued that the online facility for filing a stay application was not available at the time of filing the appeal, leading to direct submission to the Commissioner of Income Tax (TDS). The court found that the Commissioner of Income Tax (Appeals) had not adjudicated on the stay application, which was necessary for a fair decision on the matter.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 725695 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 11-09-2023
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: RAJAKANNAN; M GOPIKRISHNAN NAMBIAR; K MATHAI; JOSON MANAVALAN; KURYAN THOMAS; PAULOSE ABRAHAM
• Keywords: Assessed Tax; Income Tax; Liabilities; Liabilities; Stay Application; TDS
• Section: 201(1); 201(1A)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 WP(C) NO. 28010 OF 2023 PETITIONER: KERALA STATE FINANCIAL ENTERPRISES LIMITED, 'BHADRATHA', MUSEUM ROAD, CHEMBUKKAVU, THRISSUR,PIN – 680020. REPRESENTED BY ITS LIAISON OFFICER (LEGAL)- MR. SUDARSANAN T. V. BY ADVS. SRI. RAJA KANNAN SRI. M. GOPIKRISHNAN NAMBIAR SRI. K. JOHN MATHAI SRI. JOSON MANAVALAN SRI. KURYAN THOMAS SRI. PAULOSE C. ABRAHAM RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY ITS REVENUE SECRETARY, MINISTRY OF FINANCE, NEW DELHI, PIN – 110004. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE, DELHI, C-BLOCK, 4TH FLOOR, S. P. M. CIVIC CENTER, NEW DELHI, PIN – 110001. 3 COMMISSIONER OF INCOME TAX (TDS), 3RD FLOOR, AAYAKAR BHAVAN, OLD RAILWAY STATION ROAD, KOCHI, PIN – 682018. 4 THE INCOME TAX OFFICER (TDS) WARD TDS, AAYAKAR BHAVAN, SHAKTHAN THAMPURAN NAGAR, THRISSUR, PIN – 680001. BY ADV. SRI. CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH WP(C).28088/2023, 28162/2023 AND 28207/2023. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28010 OF 2023 & connected cases 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 WP(C) NO. 28088 OF 2023 PETITIONER: KERALA STATE FINANCIAL ENTERPRISES LIMITED, 'BHADRATHA', MUSEUM ROAD, CHEMBUKKAVU, THRISSUR,PIN – 680020. REPRESENTED BY ITS LIAISON OFFICER (LEGAL)- MR. SUDARSANAN T. V. BY ADVS. SRI. RAJA KANNAN SRI. M. GOPIKRISHNAN NAMBIAR SRI. K. JOHN MATHAI SRI. JOSON MANAVALAN SRI. KURYAN THOMAS SRI. PAULOSE C. ABRAHAM RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY ITS REVENUE SECRETARY, MINISTRY OF FINANCE, NEW DELHI, PIN – 110004. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE, DELHI, C-BLOCK, 4TH FLOOR, S. P. M. CIVIC CENTER, NEW DELHI, PIN – 110001. 3 COMMISSIONER OF INCOME TAX (TDS), 3RD FLOOR, AAYAKAR BHAVAN, OLD RAILWAY STATION ROAD, KOCHI, PIN – 682018. 4 THE INCOME TAX OFFICER (TDS) WARD TDS, AAYAKAR BHAVAN, SHAKTHAN THAMPURAN NAGAR, THRISSUR, PIN – 680001. BY ADV. SRI. CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH WP(C).28010/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28010 OF 2023 & connected cases 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 WP(C) NO. 28162 OF 2023 PETITIONER: KERALA STATE FINANCIAL ENTERPRISES LIMITED, 'BHADRATHA', MUSEUM ROAD, CHEMBUKKAVU, THRISSUR,PIN – 680020. REPRESENTED BY ITS LIAISON OFFICER (LEGAL)- MR. SUDARSANAN T. V. BY ADVS. SRI. RAJA KANNAN SRI. M. GOPIKRISHNAN NAMBIAR SRI. K. JOHN MATHAI SRI. JOSON MANAVALAN SRI. KURYAN THOMAS SRI. PAULOSE C. ABRAHAM RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY ITS REVENUE SECRETARY, MINISTRY OF FINANCE, NEW DELHI, PIN – 110004. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE, DELHI, C-BLOCK, 4TH FLOOR, S. P. M. CIVIC CENTER, NEW DELHI, PIN – 110001. 3 COMMISSIONER OF INCOME TAX (TDS), 3RD FLOOR, AAYAKAR BHAVAN, OLD RAILWAY STATION ROAD, KOCHI, PIN – 682018. 4 THE INCOME TAX OFFICER (TDS) WARD TDS, AAYAKAR BHAVAN, SHAKTHAN THAMPURAN NAGAR, THRISSUR, PIN – 680001. BY ADV. SRI. CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH WP(C).28010/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28010 OF 2023 & connected cases 4 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 WP(C) NO. 28207 OF 2023 PETITIONER: KERALA STATE FINANCIAL ENTERPRISES LIMITED, 'BHADRATHA', MUSEUM ROAD, CHEMBUKKAVU, THRISSUR,PIN – 680020. REPRESENTED BY ITS LIAISON OFFICER (LEGAL)- MR. SUDARSANAN T. V. BY ADVS. SRI. RAJA KANNAN SRI. M. GOPIKRISHNAN NAMBIAR SRI. K. JOHN MATHAI SRI. JOSON MANAVALAN SRI. KURYAN THOMAS SRI. PAULOSE C. ABRAHAM RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY ITS REVENUE SECRETARY, MINISTRY OF FINANCE, NEW DELHI, PIN – 110004. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), NATIONAL FACELESS APPEAL CENTRE, DELHI, C-BLOCK, 4TH FLOOR, S. P. M. CIVIC CENTER, NEW DELHI, PIN – 110001. 3 COMMISSIONER OF INCOME TAX (TDS), 3RD FLOOR, AAYAKAR BHAVAN, OLD RAILWAY STATION ROAD, KOCHI, PIN – 682018. 4 THE INCOME TAX OFFICER (TDS) WARD TDS, AAYAKAR BHAVAN, SHAKTHAN THAMPURAN NAGAR, THRISSUR, PIN – 680001. BY ADV. SRI. CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2023, ALONG WITH WP(C).28010/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28010 OF 2023 & connected cases 5 DINESH KUMAR SINGH, J. -------------------------- W.P.(C) Nos.28010, 28088, 28162 and 28207 of 2023 ------------------------- Dated this the 11th day of September, 2023 JUDGMENT 1. The present writ petitions have been filed impugning Exhibit P-11 common order dated 02.08.2023 whereby the 3rd respondent Commissioner of Income Tax (TDS), Kochi has directed the petitioner to deposit 20% of the whole outstanding assessed tax and liabilities for staying the remaining demand of the assessed tax and liabilities. 2. The Learned Counsel for the petitioner submits that, at the time of filing of the appeal, the online facility was not available for filing the stay application and, therefore, the petitioner approached the 3rd respondent Commissioner of Income Tax (TDS) for staying the demands of assessed tax and other liabilities. The Learned Counsel for the petitioner submits that after passing Exhibit P-11 impugned order dated 02.08.2023, the facility for filing the stay application in appeal was opened online and the petitioner filed stay petition on 01.06.2023 before the 2nd respondent Commissioner of Income Tax (Appeals). He further WP(C) NO. 28010 OF 2023 & connected cases 6 submits that the 3rd respondent Commissioner of Income Tax (TDS) has not taken anything else than the Exhibit P-11 order which prescribes upper limit of 20% of assessed tax and liabilities for staying the remaining amount. He, therefore, submits that the 2nd respondent Commissioner of Income Tax (Appeals) decides the appeal without being prejudice to the order passed by the 3rd respondent Commissioner of Income Tax (TDS). 2. Sri. Christopher Abraham, Learned Counsel for the Revenue has supported the order passed by the 3rd respondent Commissioner of Income Tax (TDS) directing the petitioner to deposit 20% of the outstanding assessed tax and liabilities for staying the remaining demand of the assessed tax and liabilities. However, he has not disputed that no adjudication in fact has been taken till date on the stay application. The authority to adjudicate the stay application is the 2nd respondent Commissioner of Income Tax (Appeals), which is required to apply its mind on the facts and circumstances of the case. 3. In view thereof, the present writ petition is allowed and impugned Exhibit P-11 common order dated 02.08.2023 passed by the 3rd respondent Commissioner of Income Tax (TDS) is set aside. The 2nd respondent Commissioner of Income Tax (Appeals) WP(C) NO. 28010 OF 2023 & connected cases 7 to whom the appeals and stay applications are pending is directed to decide the said applications of the petitioner in accordance with law expeditiously, preferably within a period of two months. With the aforesaid directions these writ petitions are finally disposed of. Sd/- DINESH KUMAR SINGH JUDGE Svn WP(C) NO. 28010 OF 2023 & connected cases 8 APPENDIX OF WP(C) 28010/2023 PETITIONER’S EXHIBITS EXHIBIT 1 THE TRUE COPY OF THE ORDER DATED 31.03.2023 ISSUED UNDER SECTION 201(1)/201(1A) OF THE ACT, ALONG WITH NOTICE OF DEMAND DATED 31.03.2023, PASSED BY THE 4TH RESPONDENT FOR THE A.Y. 2022-23 EXHIBIT P2 A TRUE COPY OF FORM NO.35 (APPEAL MEMORANDUM) DATED 28.04.2023, ALONG WITH THE STATEMENT OF FACTS AND GROUNDS OF APPEAL DATED 27.04.2023, E-FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF E-ACKNOWLEDGMENT DATED 28.04.2023, GENERATED AT THE TIME OF FILING OF EXT.P2 APPEAL EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 03.05.2023 (WITHOUT ANNEXURES) SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P5 THE TRUE COPY OF THE STAY PETITION DATED 03.05.2023 (WITHOUT ANNEXURES), WHICH WAS SUBMITTED ALONG WITH EXT.P4 LETTER FILED BEFORE THE 4TH RESPONDENT EXHIBIT P6 THE TRUE COPY OF THE COMMUNICATION DATED 09.05.2023 ISSUED BY THE 4TH RESPONDENT EXHIBIT P7 THE TRUE COPY OF THE STAY PETITION DATED 11.05.2023 (WITHOUT ANNEXURES) SUBMITTED BEFORE THE 3RD RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL GENERATED AT THE TIME OF E-FILING OF STAY PETITION BEFORE THE 2ND RESPONDENT EXHIBIT P9 THE TRUE COPY OF THE ADDITIONAL GROUNDS OF STAY PETITION DATED 18.08.2023 E-FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WP(C) NO. 28010 OF 2023 & connected cases 9 EXHIBIT P10 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL GENERATED AT THE TIME OF E-FILING OF ADDITIONAL GROUNDS OF STAY PETITION BEFORE THE 2ND RESPONDENT EXHIBIT P11 THE TRUE COPY OF THE COMMON ORDER DATED 02.08.2023 PASSED BY THE 3RD RESPONDENT EXHIBIT P12 THE TRUE COPY OF THE LETTER DATED 17.08.2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT WP(C) NO. 28010 OF 2023 & connected cases 10 APPENDIX OF WP(C) 28088 /2023 PETITIONER’S EXHIBITS EXHIBIT 1 THE TRUE COPY OF THE ORDER DATED 31.03.2023 ISSUED UNDER SECTION 201(1)/201(1A) OF THE ACT, ALONG WITH NOTICE OF DEMAND DATED 31.03.2023, PASSED BY THE 4TH RESPONDENT FOR THE A.Y. 2022-23 EXHIBIT P2 A TRUE COPY OF FORM NO.35 (APPEAL MEMORANDUM) DATED 28.04.2023, ALONG WITH THE STATEMENT OF FACTS AND GROUNDS OF APPEAL DATED 27.04.2023, E-FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF E-ACKNOWLEDGMENT DATED 28.04.2023, GENERATED AT THE TIME OF FILING OF EXT.P2 APPEAL EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 03.05.2023 (WITHOUT ANNEXURES) SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P5 THE TRUE COPY OF THE STAY PETITION DATED 03.05.2023 (WITHOUT ANNEXURES), WHICH WAS SUBMITTED ALONG WITH EXT.P4 LETTER FILED BEFORE THE 4TH RESPONDENT EXHIBIT P6 THE TRUE COPY OF THE COMMUNICATION DATED 09.05.2023 ISSUED BY THE 4TH RESPONDENT EXHIBIT P7 THE TRUE COPY OF THE STAY PETITION DATED 11.05.2023 (WITHOUT ANNEXURES) SUBMITTED BEFORE THE 3RD RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL GENERATED AT THE TIME OF E-FILING OF STAY PETITION BEFORE THE 2ND RESPONDENT EXHIBIT P9 THE TRUE COPY OF THE ADDITIONAL GROUNDS OF STAY PETITION DATED 18.08.2023 E-FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WP(C) NO. 28010 OF 2023 & connected cases 11 EXHIBIT P10 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL GENERATED AT THE TIME OF E-FILING OF ADDITIONAL GROUNDS OF STAY PETITION BEFORE THE 2ND RESPONDENT EXHIBIT P11 THE TRUE COPY OF THE COMMON ORDER DATED 02.08.2023 PASSED BY THE 3RD RESPONDENT EXHIBIT P12 THE TRUE COPY OF THE LETTER DATED 17.08.2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT WP(C) NO. 28010 OF 2023 & connected cases 12 APPENDIX OF WP(C) 28162 /2023 PETITIONER’S EXHIBITS EXHIBIT 1 THE TRUE COPY OF THE ORDER DATED 31.03.2023 ISSUED UNDER SECTION 201(1)/201(1A) OF THE ACT, ALONG WITH NOTICE OF DEMAND DATED 31.03.2023, PASSED BY THE 4TH RESPONDENT FOR THE A.Y. 2022-23 EXHIBIT P2 A TRUE COPY OF FORM NO.35 (APPEAL MEMORANDUM) DATED 28.04.2023, ALONG WITH THE STATEMENT OF FACTS AND GROUNDS OF APPEAL DATED 27.04.2023, E-FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF E-ACKNOWLEDGMENT DATED 28.04.2023, GENERATED AT THE TIME OF FILING OF EXT.P2 APPEAL EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 03.05.2023 (WITHOUT ANNEXURES) SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P5 THE TRUE COPY OF THE STAY PETITION DATED 03.05.2023 (WITHOUT ANNEXURES), WHICH WAS SUBMITTED ALONG WITH EXT.P4 LETTER FILED BEFORE THE 4TH RESPONDENT EXHIBIT P6 THE TRUE COPY OF THE COMMUNICATION DATED 09.05.2023 ISSUED BY THE 4TH RESPONDENT EXHIBIT P7 THE TRUE COPY OF THE STAY PETITION DATED 11.05.2023 (WITHOUT ANNEXURES) SUBMITTED BEFORE THE 3RD RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL GENERATED AT THE TIME OF E-FILING OF STAY PETITION BEFORE THE 2ND RESPONDENT EXHIBIT P9 THE TRUE COPY OF THE ADDITIONAL GROUNDS OF STAY PETITION DATED 18.08.2023 E-FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WP(C) NO. 28010 OF 2023 & connected cases 13 EXHIBIT P10 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL GENERATED AT THE TIME OF E-FILING OF ADDITIONAL GROUNDS OF STAY PETITION BEFORE THE 2ND RESPONDENT EXHIBIT P11 THE TRUE COPY OF THE COMMON ORDER DATED 02.08.2023 PASSED BY THE 3RD RESPONDENT EXHIBIT P12 THE TRUE COPY OF THE LETTER DATED 17.08.2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT WP(C) NO. 28010 OF 2023 & connected cases 14 APPENDIX OF WP(C) 28207 /2023 PETITIONER’S EXHIBITS EXHIBIT 1 THE TRUE COPY OF THE ORDER DATED 31.03.2023 ISSUED UNDER SECTION 201(1)/201(1A) OF THE ACT, ALONG WITH NOTICE OF DEMAND DATED 31.03.2023, PASSED BY THE 4TH RESPONDENT FOR THE A.Y. 2022-23 EXHIBIT P2 A TRUE COPY OF FORM NO.35 (APPEAL MEMORANDUM) DATED 28.04.2023, ALONG WITH THE STATEMENT OF FACTS AND GROUNDS OF APPEAL DATED 27.04.2023, E-FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF E-ACKNOWLEDGMENT DATED 28.04.2023, GENERATED AT THE TIME OF FILING OF EXT.P2 APPEAL EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 03.05.2023 (WITHOUT ANNEXURES) SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P5 THE TRUE COPY OF THE STAY PETITION DATED 03.05.2023 (WITHOUT ANNEXURES), WHICH WAS SUBMITTED ALONG WITH EXT.P4 LETTER FILED BEFORE THE 4TH RESPONDENT EXHIBIT P6 THE TRUE COPY OF THE COMMUNICATION DATED 09.05.2023 ISSUED BY THE 4TH RESPONDENT EXHIBIT P7 THE TRUE COPY OF THE STAY PETITION DATED 11.05.2023 (WITHOUT ANNEXURES) SUBMITTED BEFORE THE 3RD RESPONDENT EXHIBIT P8 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL GENERATED AT THE TIME OF E-FILING OF STAY PETITION BEFORE THE 2ND RESPONDENT EXHIBIT P9 THE TRUE COPY OF THE ADDITIONAL GROUNDS OF STAY PETITION DATED 18.08.2023 E-FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT WP(C) NO. 28010 OF 2023 & connected cases 15 EXHIBIT P10 THE TRUE COPY OF THE E-ACKNOWLEDGMENT DATED NIL GENERATED AT THE TIME OF E-FILING OF ADDITIONAL GROUNDS OF STAY PETITION BEFORE THE 2ND RESPONDENT EXHIBIT P11 THE TRUE COPY OF THE COMMON ORDER DATED 02.08.2023 PASSED BY THE 3RD RESPONDENT EXHIBIT P12 THE TRUE COPY OF THE LETTER DATED 17.08.2023 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT "