M/S MARTHOMA CHERIA PALLY V. THE JOINT DIRECTOR OF INCOME TAX

WP(C)/20799/2012

AI Insights

The case involves M/S Marthoma Cheria Pally, represented by Fr. Manu Mathew, challenging an order (Ext.P8) passed by the Commissioner of Income Tax (Appeals)-II, Kochi, which directed the petitioner to remit 50% of the tax demand in five equal monthly installments. The petitioner contended that the order was passed without a proper hearing. The respondents, including the Joint Director of Income Tax and the Commissioner of Income Tax (Appeals), defended the order, noting that the petitioner failed to appear despite being served a notice. The court did not delve into the merits of the tax liability but allowed the petitioner to present additional materials to support their case.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 755890 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-11-2012
• Assessment Year: misc
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: ANIL NAIR; J R NAVAZ; NIVEDITA KAMATH
• Keywords: Assessment Order; Exemption; Income Tax; Stay Petition

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934 WP(C).No. 20799 of 2012 (Y) --------------------------- PETITIONER(S): ------------------------ M/S.MARTHOMA CHERIA PALLY, A.M. ROAD, KOTHAMANGALAM-686 691, REPRESENTED BY FR. MANU MATHEW. BY ADVS.SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A.KAMATH RESPONDENT(S): --------------------------- 1. THE JOINT DIRECTOR OF INCOME TAX, (OSD) (EXEMPTION) RANGE-4, KOCHI. - 682 005. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), ERNAKULAM - 682 018. 3. ASSISTANT DIRECTOR OF INCOME TAX (EXEMPTION), RANGE-4, KOCHI - 682 005. R1 TO R3 BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20799/2012 Y APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE ASSESSMENT ORDER DATED 21.12.2011 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT FOR THE YEAR 2009-10. EXHIBIT P2: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2009-10. EXHIBIT P3: TRUE COPY OF THE STAY PETITION FOR THE YEAR 2009-10 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4: TRUE COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT DATED 26.6.2012 ISSUED TO THE PETITIONER. EXHIBIT P5: TRUE COPY OF THE JUDGMENT IN W.(C)NO.15657. EXHIBIT P6: TRUE COPY OF THE NOTICE NO.ITA NO.61/R-4/E/CIT(A)-11/11-12 DATED 25.7.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7: TRUE COPY OF THE LETTER DATED 30.7.2012 SUBMITTED BY THE PETITIONER. EXHIBIT P8: TRUE COPY OF THE ORDER DATED 13.8.2012 OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ PA.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.20799/2012-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of November, 2012 J U D G M E N T The writ petition is filed by the petitioner challenging Ext.P8 order passed by the Commissioner of Income Tax (Appeals)-II, Kochi on a stay petition filed by the petitioner. 2. Therein, a direction is issued to the petitioner to remit 50% of the demand raised in five equal monthly instalments. The schedule of instalments is the following: 1st Instalment is to be paid on or before 10/09/2012 and the subsequent four instalments on or before 10/10/2012, 10/11/2012, 10/12/2012 & 10/01/2013. There is a further direction that for the remaining 50% of the demand, the petitioner will not be treated as an assessee in default till January, 2013 or till the disposal of substantive appeal whichever is earlier. 3. When the writ petition came up on 07/09/2012, this Court directed the petitioner to remit the first instalment before 20/09/2012 and the time was extended upto that date. It is stated that the first instalment has been paid. Mainly, it is contended that Ext.P8 was passed without hearing the petitioner. 4. Learned Standing Counsel on getting instructions submitted that actually a notice was served on the petitioner, but there is a failure to W.P.(C). No.20799/2012 -:2:- appear which fact is recorded in Ext.P8 order. It is also submitted that this Court by Ext.P5 Judgment dated 05/07/2012 directed the stay petition to be disposed of within a period of one month. 5. The learned counsel for the petitioner submits that actually there will not be any liability for the petitioner and this fact can be proved by producing the exemption orders. It is also submitted that by application dated 30/07/2012, the petitioner has approached the Commissioner of Income Tax (Appeal)-II, to furnish the last updated exemption order. Anyhow, this is a material which was not before the Appellate Authority. Therefore, if the petitioner wants to rely upon those materials, it is open to the petitioner to produce the same and file appropriate application to modify the order passed on the stay petition. Therefore, I need not go into the merits of the matter at this stage. 6. The petitioner will pay the second instalment before 20/11/2012 and file the application also before that date and if such an application is filed along with the required documents, the same will be considered and appropriate orders will be passed within a period of one month. The writ petition is, accordingly, disposed of. No costs. (T.R. Ramachandran Nair, Judge.) ms "