THE KODUR SERVICE CO-OPERATIVE BANK LIMITED F 1523, V. THE COMMISSIONER OF INCOME TAX(APPEALS)

WP(C)/12806/2019

AI Insights

The case involves multiple writ petitions filed by various Service Co-operative Banks against the Commissioner of Income Tax (Appeals) and the Income Tax Officer, challenging the conditions imposed for granting a stay on the assessment orders. The petitioners argued against the discretion exercised by the Commissioner in imposing the condition of depositing 20% of the disputed tax for the stay. The court considered the petitions along with similar cases and decided to uphold the conditions set by the Commissioner, referencing the CBDT circular which allows such a condition. The court also addressed the petitioners' request for an expedited disposal of their appeals, granting a three-month timeline for the Commissioner to resolve the appeals, contingent upon the petitioners' compliance with the deposit condition.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 698196 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 31-05-2019
• Assessment Year: misc
• Laws Referred To: CBDT circular
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: O D SIVADAS
• Keywords: Appeal; Co-operative Bank; Income Tax; Stay of Assessment
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941 WP(C).No. 12806 of 2019 PETITIONER: THE KODUR SERVICE CO-OPERATIVE BANK LIMITED F 1523, KODUR P.O.MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.O.D.SIVADAS RESPONDENTS: 1 THE COMMISSIONER OF INCOME TAX(APPEALS) AYAKAR BHAVAN,KOZHIKODE-673 001. 2 THE INCOME TAX OFFICER, WARD (4),TIRUR-676 001. OTHER PRESENT: SC SRI. CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.05.2019, ALONG WITH WP(C).12817/2019, WP(C).12843/2019, WP(C).12910/2019 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -2- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941 WP(C).No. 12817 of 2019 PETITIONER: THE PATTIKKAD SERVICE CO-OP. BANK LIMITED NO.P 455 PATTIKKAD P.O., MALAPPURAM DISTRICT 679 325, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.O.D.SIVADAS RESPONDENTS: 1 THE COMMISSIONER OF INCOME TAX (APPEALS) AYAKAR BHAVAN, KOZHIKODE 673 001. 2 THE INCOME TAX OFFICER, WARD (4), TIRUR 676 001. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.05.2019, ALONG WITH WP(C).12843/2019, WP(C).12806/2019, WP(C).12910/2019 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -3- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941 WP(C).No. 12843 of 2019 PETITIONER: THE ANGADIPURAM SERVICE CO-OPERATIVE BANK LTD.NO.P 581, ROSHNI PLAZA, ANGADIPPURAM, MALAPPURAM, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.O.D.SIVADAS RESPONDENTS: 1 THE COMMISSIONER OF INCOME TAX(APPEALS), AYAKAR BHAVAN, KOZHIKODE - 673 001. 2 THE INCOME TAX OFFICER, WARD (4), TIRUR - 676 001. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.05.2019, ALONG WITH WP(C).12817/2019, WP(C).12806/2019, WP(C).12910/2019 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -4- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941 WP(C).No. 12910 of 2019 PETITIONER: THE KADANNAMANNA SERVICE CO OPERATIVE BANK LIMITED NO.10561, KADANNAMANNA P.O., MANAKADA VIA., MALAPPURAM - 679 324, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.O.D.SIVADAS RESPONDENTS: 1 THE COMMISSIONER OF INCOME TAX (APPEALS), AYAKAR BHAVAN, KOZHIKODE - 673 001. 2 THE INCOME TAX OFFICER, WARD (4), TIRUR - 676 001. OTHER PRESENT: SC SRI.CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.05.2019, ALONG WITH WP(C).12817/2019, WP(C).12806/2019, WP(C).12843/2019 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -5- JUDGMENT All these writ petitions are filed challenging Ext.P6 order passed by the 1st respondent. The 1st respondent while considering the prayers of the petitioners/assessees for granting stay of assessment orders under challenge in the appeals before him imposed the following conditions; 3.”considering the facts and merits of the case, the appellant is directed to pay 10% of the demand by 30.04.2019 and another 10% by 31.05.2019 and produce copy of challan to the Assessing Officer. The balance demand is stayed for a limited period of six months or disposal of appeal whichever is earlier. 4. Assessing Officer is directed to monitor the payment of demand which shall be remitted by the appellant in two equal installments by the end of April and May, 2019. The assessing officer is also directed to report the default in this matter to be undersigned”. Hence the following writ petitions; 2. The petitioners raise several grounds against the discretion exercised by the 1st respondent while imposing the WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -6- conditions excerpted above. This court on admission in W.P.(C). Nos. 12806 of 2019, 12843 of 2019 & 12817 of 2019 had imposed the following condition for continuation of stay of recovery of impugned tax; “'The time prescribed by the Commissioner of Income Tax ( Appeals) for deposit of 10% of the demand by 30.04.2019, and another 10% by 31.05.2019, will be stand extended for a further period of one month”. 3. The said condition is also not complied with. This Court is not pursued to interfere with the condition imposed in Ext.P6 order particularly keeping in view the CBDT circular issued which stipulates 20% of disputed tax could be imposed as condition for granting the stay. The challenge hence fails. 4. After the order is dictated Sri. Sivadas, the learned counsel for the petitioners requests for expeditious disposal of the appeals pending before the 1st respondent for the assessment year 2016-2017. WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -7- 5. Mr. Christopher Abraham, the learned standing counsel for the respondents opposes issuing a direction for disposal of appeal within time frame as may be stipulated by this Court; for, according to him, the petitioners cannot be allowed to have it both ways, i.e. not paying any tax and at the same time insist for expeditious disposal of appeals. 6. I have taken note of the order dated 30.4.2019 passed by this Court in these writ petitions and also the issue for consideration before the 1st respondent. This Court as an exceptional case directs the 1st respondent to dispose of the appeals within three months from the date of receipt of copy of this judgment. 7. The petitioners, if complies with the condition of depositing 10% within four weeks from today, the petitioners are entitled to the stay of the assessment orders under challenge in the subject appeals till its disposal thereof. The petitioners, if fail, to comply with the condition now stipulated by this court, it is made clear that the petitioners are not entitled for the benefit of the stay WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -8- orders. The authorities can proceed to recover the amount in accordance with law. This order shall not be treated as a precedent. SD/- S.V.BHATTI JUDGE SJ WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -9- APPENDIX OF WP(C) 12806/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ASSESSMENT ORDER DATED 18.12.2018 ISSUED BY THE 2ND RESPONDENT FOR THE PERIOD 2016-17 EXHIBIT P2 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17 EXHIBIT P3 COPY OF THE STAY PETITION FILED IN THE APPEAL FILED BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17 EXHIBIT P4 COPY OF THE ORDER DATED 10.1.2018 ISSUED BY THE ITAT, COCHIN BENCH. EXHIBIT P5 COPY OF THE ORDER DATED 18.3.2019 ISSUED BY THE 1ST RESPONDENT IN APPEAL FOR THE PERIOD 2015-16 EXHIBIT P6 COPY OF THE ORDER DATED 9.4.2019 ISSUED BY THE 1ST RESPONDENT IN THE STAY PETITION FILED IN RELATION TO THE APPEAL FOR THE PERIOD 2016-17 WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -10- APPENDIX OF WP(C) 12817/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ASSESSMENT ORDER DATED 17.12.2018 ISSUED BY THE 2ND RESPONDENT FOR THE PERIOD 2016-17. EXHIBIT P2 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17. EXHIBIT P3 COPY OF THE STAY PETITION FILED IN THE APPEAL FILED BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17 EXHIBIT P4 COPY OF THE ORDER DATED 10.1.2018 ISSUED BY THE ITAT, COCHIN BENCH. EXHIBIT P5 COPY OF THE ORDER DATED 17.10.2018 ISSUED BY THE 1ST RESPONDENT IN APPEAL FOR THE PERIOD 2015-16 EXHIBIT P6 COPY OF THE ORDER DATED 9.4.2019 ISSUED BY THE 1ST RESPONDENT IN THE STAY PETITION FILED IN RELATION TO THE APPEAL FOR THE PERIOD 2016-17. WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -11- APPENDIX OF WP(C) 12843/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ASSESSMENT ORDER DATED 18/12/2018 ISSUED BY THE 2ND RESPONDENT FOR THE PERIOD 2016-17. EXHIBIT P2 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17. EXHIBIT P3 COPY OF THE STAY PETITION FILED IN THE APPEAL FILED BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17. EXHIBIT P4 COPY OF THE ORDER DATED 10/01/2018 ISSUED BY THE ITAT, COCHIN BENCH. EXHIBIT P5 COPY OF THE ORDER DATED 17/10/2018 ISSUED BY THE 1ST RESPONDENT IN APPEAL FOR THE PERIOD 2015-16. EXHIBIT P6 COPY OF THE ORDER DATED 9/04/2019 ISSUED BY THE 1ST RESPONDENT IN THE STAY PETITION FILED IN RELATION TO THE APPEAL FOR THE PERIOD 2016-17. WP(C)12806/2019,WP(C)12817/2019,WP(C)12843/2019 & 12910/2019 -12- APPENDIX OF WP(C) 12910/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF THE ASSESSMENT ORDER DATED 19/12/2018 ISSUED BY THE 2ND RESPONDENT FOR THE PERIOD 2016-17. EXHIBIT P2 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17. EXHIBIT P3 COPY OF THE STAY PETITION FILED IN THE APPEAL FILED BEFORE THE 1ST RESPONDENT FOR THE PERIOD 2016-17. EXHIBIT P4 COPY OF THE ORDER DATED 10/01/2018 ISSUED BY THE ITAT, COCHIN BENCH. EXHIBIT P5 COPY OF THE ORDER DATED 15/03/2019 ISSUED BY THE 1ST RESPONDENT IN APPEAL FOR THE PERIOD 2015-16. EXHIBIT P6 COPY OF THE ORDER DATED 9/04/2019 ISSUED BY THE 1ST RESPONDENT IN THE STAY PETITION FILED IN RELATION TO THE APPEAL FOR THE PERIOD 2016-17. "