MR.E.N.GOPAKUMAR V. UNION OF INDIA, REPRESENTED BY ITS SECRETARY

WP(C)/3785/2013

AI Insights

The petitioner, Mr. E.N. Gopakumar, challenged the assessment orders for the years 2004-2005 to 2010-2011 issued by the Deputy Commissioner of Income Tax, Ernakulam. The petitioner had filed appeals against these orders, which were still pending. Meanwhile, coercive recovery proceedings were initiated, including garnishee proceedings against the petitioner. The petitioner sought a stay on these proceedings, arguing that he had made partial payments and submitted post-dated cheques. The court found merit in expediting the appeal process and temporarily halting further coercive actions, contingent upon a substantial interim payment by the petitioner.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 740849 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 08-02-2013
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: M GOPIKRISHNAN NAMBIAR; P GOPINATH; P BENNY THOMAS; K JOHN MATHAI; PREETHA NAIR
• Keywords: Appeal; Assessment Order; Garnishee proceedings; Income Tax; Stay Petition
• Section: 226(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934 WP(C).No. 3785 of 2013 (W) -------------------------- PETITIONER(S): -------------------------- MR.E.N.GOPAKUMAR, AGED 45 YEARS, EDATHIPARAMBIL HOUSE, PALLISSERY, ANNAMANDA, THRISSUR 680 741. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SMT.PREETHA S.NAIR RESPONDENT(S): ---------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI 110004. 2. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, ERNAKULAM, KOCHI 682 018. 3. COMMISSIONER OF INCOME TAX(APPEALS), 6TH FLOOR, KERALA BHAVAN, SRVHS ROAD, KOCHI 682 011. BY ADV. SRI JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3785 of 2013 (W) APPENDIX PETITIONER(S) EXHIBITS EXT.P1: TRUE COPY OF THE ASSESMENT ORDER FOR THE YEAR 2004-05 DATED 30-12-2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P2: TRUE COPY OF THE ASSESMENT ORDER FOR THE YEAR 2005-06 DATED 30-12-2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P3: TRUE COPY OF THE ASSESMENT ORDER FOR THE YEAR 2006-07 DATED 30-12-2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P4: TRUE COPY OF THE ASSESMENT ORDER FOR THE YEAR 2007-08 DATED 30-12-2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P5: TRUE COPY OF THE ASSESMENT ORDER FOR THE YEAR 2009-10 DATED 30-12-2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P6: TRUE COPY OF THE ASSESMENT ORDER FOR THE YEAR 2010-11 DATED 30-12-2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P7: TRUE COPY OF THE APPEAL FOR THE YEAR 2004-05 DATED 28-01-2012 FILED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT. EXT.P8: TRUE COPY OF THE APPEAL FOR THE YEAR 2005-06 DATED 28-01-2012 FILED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT. EXT.P9: TRUE COPY OF THE APPEAL FOR THE YEAR 2006-07 DATED 28-01-2012 FILED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT. EXT.P10: TRUE COPY OF THE APPEAL FOR THE YEAR 2007-08 DATED 28-01-2012 FILED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT. EXT.P11: TRUE COPY OF THE APPEAL FOR THE YEAR 2009-10 DATED 28-01-2012 FILED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT. EXT.P12: TRUE COPY OF THE APPEAL FOR THE YEAR 2010-11 DATED 28-01-2012 FILED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT. EXT.P13: TRUE COPY OF THE NOTICE DATED 13-12-2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P14: TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND REPONDENT DATED 30-01-2012. WP(C).No. 3785 of 2013 (W) EXT.P15: TRUE COPY OF THE NOTICE UNDER SECTION 226(3) OF THE INCOME TAX ACT ISSUED BY THE 2ND RESPONDENT TO THE MANAGER BHARAT PETROLEUM CORPORATION LIMITED IRUMPANAM KOCHI DATED 04-01- 2013. EXT.P6: TRUE COPY OF THE STAY PETITION DATED 08-01-2013 FILED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT. EXT.P17: TRUE COPY OF THE STAY PETITION DATED 09-01-2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P18: TRUE COPY OF THE STATEMENT SHOWING PARTICULARS OF CHEQUES PAYBLE EVERY MONTH TOWARDS PAYMENT OF TAX ARREARS. EXT.P19: TRUE COPY OF THE ARGUMENT NOTES DATED 09-01-2013 FILED FOR THE YEAR 2004-05 BY THE PETITIOENR BEFORE THE 3RD RESPONDENT. EXT.P20: TRUE COPY OF THE ARGUMENT NOTES DATED 09-01-2013 FILED FOR THE YEAR 2005-06 BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P21: TRUE COPY OF THE ARGUMENT NOTES DATED 09-01-2013 FILED FOR THE YEAR 2006-07 BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P22: TRUE COPY OF THE ARGUMENT NOTES DATED 09-01-2013 FILED FOR THE YEAR 2007-08 BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P23: TRUE COPY OF THE ARGUMENT NOTES DATED 09-01-2013 FILED FOR THE YEAR 2009-10 BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P24: TRUE COPY OF THE ARGUMENT NOTES DATED 09-01-2013 FILED FOR THE YEAR 2010-11 BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P25: TRUE COPY OF THE ORDER DATED 10-01-2013 ISSUED BY THE 2ND RESPONDENT TO THE MANAGER BHARAT PETROLEUM CORPORATION LTD. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE LSN P.R. RAMACHANDRA MENON J. ------------------------------------ W.P.(C) No. 3785 of 2013 ----------------------------------- Dated this the 8th day of February, 2013. JUDGMENT The petitioner is aggrieved of Ext. P1 to P6 assessment orders passed by the second respondent in respect of the years 2004-2005 to 2010-2011, which are under challenge in Exts. P7 to P12 Appeals filed before the 3rd respondent. The petitioner contends that, pursuant to Ext. P13 notice given by the 3rd respondent, the matter was heard and orders stand reserved. In the meanwhile coercive proceedings are being pursued and hence the petitioner filed Ext. P14 petition for stay before the 2nd respondent. 2. While so, the 2nd respondent initiated 'garnishee proceedings', issuing notice under Section 226(3) of the Income Tax Act to the Manager of the Bharat Petroleum Corporation Limited, Irumpanam. The petitioner rushed to the 3rd respondent and filed Exts. P16 and P17 petitions for stay and furnished Ext.P18 particulars of statement, showing the manner in which W.P.(C) No. 3785 of 2013 2 the liability is sought to be liquidated by the petitioner. Exts. P19 to P24 'Notes of Arguments' were also submitted before the 3rd respondent. The petitioner sought to effect the payments by way of 'post-dated cheques' and the position was brought to the notice of the 2nd respondent with reference to the particulars of the cheques and the payments proposed to be effected. It is stated that, only one cheque has been encashed by the concerned authority and expressing satisfaction over the position, the 2nd respondent himself was pleased to issue Ext. P25 order dated 10.01.2013 lifting the garnishee proceedings for the time being, as communicated to the Manager, Bharat Petroleum Corporation Limited. The petitioner has approached this Court seeking to direct the 3rd respondent to finalise the proceedings and to keep the recovery proceedings in abeyance, till such time. 3. The learned Standing Counsel appearing for the respondents submits that, the liability to be satisfied by the petitioner is nearly to tune of 1.95 Crores. It is also stated that, there is absolutely no merit with regard to the challenge against the assessment, which was made pursuant to the search and W.P.(C) No. 3785 of 2013 3 seizure, bringing out very vital incriminating circumstances. The petitioner admittedly is pursuing various business opertunities; especially as a Partner in M/s. Essen Trading Company (which is an Edible Oil Manufacturing Unit at Annamanada, Thrissur) as the Proprietor of Essen Roadlines (which is a Transporting Company) and further as a Real Estate Business holder. It is also stated that, the facts and figures would be meticulously examined and appropriate orders will be passed by the Appellate Authority in the due course. It is also stated that, the relevant facts and figures have been meticulously analysed by the assessing authority, who has given the reasons to arrive at the inference in Exts. P1 to P6 orders. 4. After hearing both the sides, this Court finds that, the Appeal proceedings filed by the petitioner have to be finalised at the earliest. Admittedly, the petitioner had given only some “post-dated cheques” and only one cheque has been encashed by the Department in this regard. It is further stated that, some cash payment has also been effected to the tune of about Rs.4,15,000/- (Rupees Four lakhs fifteen thousand only), but the W.P.(C) No. 3785 of 2013 4 learned Standing Counsel retorts that, the liability has been fixed after giving credit to the said payment. In the above facts and circumstances, the 3rd respondent is directed to finalise the Appeals preferred by the petitioner passing appropriate orders on Exts. P7 to P12 in accordance with law, at the earliest, at any rate, on or before 31.07.2013. Coercive proceedings shall be kept in abeyance till such time; on condition that, the petitioner satisfies a lump sum payment of Rs.10,00,000/- (Rupees Ten lakhs only) within one month. Writ petition is disposed of. P.R. RAMACHANDRA MENON, (JUDGE) sp "