MATHEW K.CHERIAN V. THE ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/9871/2019

AI Insights

The case involves Mathew K. Cherian, the petitioner, who challenged an order (Ext.P4) from the Commissioner of Income Tax (Appeals)-III, which conditionally stayed the demand for a disputed tax amount pending appeal. The petitioner argued that the order was unsustainable as it was unreasoned and brief, failing to consider the grounds urged. The respondents defended the order based on statutory provisions requiring a 20% deposit of the disputed amount for a stay. The court found the order to be too brief and lacking sufficient reasoning, leading to its setting aside and remittance for a detailed reconsideration.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 761173 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-04-2019
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; NAVNEETH NATH
• Assessee Lawyers: T M SREEDHARAN; DIVYA RAVINDRAN; NISHA JOHN; R BHASKARA KRISHNAN; V P NARAYANAN
• Keywords: Appeal; Assessment Order; Coercive Steps; Income Tax; Stay of demand
• Section: 220(6)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI MONDAY ,THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941 WP(C).No. 9871 of 2019 PETITIONER: MATHEW K.CHERIAN AGED 62 YEARS S/O. CHERIAN,KOSAMATTAM HOUSE, MANGANAM.P.O,KOTTAYAM-686 018. BY ADVS. SRI.T.M.SREEDHARAN (SR.) SMT.DIVYA RAVINDRAN SMT.NISHA JOHN SRI.R.BHASKARA KRISHNAN SRI.V.P.NARAYANAN RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE,KOTTAYAM-686 001. 2 THE COMMISSIONER OF INCOME TAX(APPEALS)-III, 28/243,'POORNIMA',NEAR MANORAMA JUNCTION, PANAMPILLY NAGAR, KOCHI-682 036. SC SRI. JOSE JOSEPH., SRI. NAVNEETH N NATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- WP(C).No. 9871 of 2019 JUDGMENT Heard Sri. V.P Narayanan the learned counsel for the petitioner and Sri.Navneeth N. Nath, appeared on behalf of the learned Standing Counsel for the respondents. 2. The petitioner challenges Ext.P4 order passed by the 2nd respondent as completely unsustainable. In the facts and circumstances of the case, the non-consideration of the grounds urged by the petitioner is evident from the unreasoned and brief order made in Ext.P4. The counsel for the petitioner to bring home his contention invites the attention of this Court to Ext.P4, which reads thus: “ Please refer to your request for stay of demand for aforesaid Assessment Year. 2. With respect to your above request, this is to inform you that stay of demand in your case can only be granted if you have deposited 20% of the total outstanding demand. In case you have paid the aforesaid demand, the recovery proceedings for the aforesaid demand is to be stayed till the disposal of your appeals before the undersigned. 3. In the light of the above, the above referred stay petition pending in this office stands disposed off“. -3- WP(C).No. 9871 of 2019 3. Therefore, he prays for, firstly setting aside Ext.P4 and grant stay pending disposal of the appeal. 4. The counsel appearing for the respondents by referring to the order under appeal, tries to sustain Ext.P4 by contending that the 2nd respondent having regard to the scheme of the Act, the grounds urged etc., has put the petitioner on the condition of 20%, which the statute stipulates in this behalf. Without prejudice to his first contention, he contends that this Court if for any reason is not convinced with the brief order Ext.P4. The Ext.P4 could be set aside. Stay application is sent back to the 2nd respondent for consideration and disposal in accordance with law. To appreciate the rival contentions to the extent required, this Court has gone through the record and prima facie is in agreement with the contention urged by the petitioner that Ext.P4 suffers from too much of brevity and for uninformed reasons and grounds the -4- WP(C).No. 9871 of 2019 petitioner is put on the condition of depositing 20% of disputed tax amount. Hence, order Ext.P4 is set aside and matter remitted to 2nd respondent for consideration and disposal of Ext.P2(a) stay petition, as expeditiously as possible, and pass orders within six weeks from today. The respondents are directed not to take coercive steps for six weeks from today. Sd/- S.V.BHATTI JUDGE JS/01.04 -5- WP(C).No. 9871 of 2019 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 31.12.2017 ALOGN WITH DEMAND NOTICE AND COMPUTATION OF INCOME FOR THE ASST.YEAR 2015-16 PASSED BY THE FIRST RESPONDENT. EXHIBIT P2 TRUE COPY OF MEMORANDUM OF APPEAL DATED 5.2.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P2 A TRUE COPY OF STAY PETITION DATED 7-2- 2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P2 B TRUE COPY OF PETITION FOR CONDONATION OF DELAY IN FILING THE APPEAL DATED 5- 2-2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER U/S. 220(6) DATED 19-2-2018 PASSED BY THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE ORDER NO. CIT(A)- III/ITA-14/STAY PETITION/2018-19 DATED 28-02-2019 ISSUED BY THE 2ND RESPONDENT. "