MRS.NISHI JAHANGIR V. THE INCOME TAX OFFICER

WP(C)/33406/2009

AI Insights

In this case, Mrs. Nishi Jehangir, the petitioner, challenged the revised income tax assessment for the year 2005-2006, which included advances from her company as deemed dividend income under Section 2(22)(e) of the Income-tax Act. Initially, these advances were not considered in her tax assessment. However, upon revision, she was required to pay Rs. 17,26,897 as tax. The petitioner appealed against this assessment and sought relief from the High Court to stay the recovery proceedings and quash the garnishee notice issued under section 226(3) of the Income-tax Act. The court, acknowledging the delay in the appeal process, decided to stay the recovery proceedings on the condition that the petitioner pays 50% of the disputed amount in two installments.

• Counselvise Citation: [2009] 140 COUNSELVISE.COM (IT) 764831 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 23-11-2009
• Assessment Year: misc
• Laws Referred To: Income-tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: T M SREEDHARAN; C K SHERIN; V P NARAYANAN
• Keywords: Assessment Revision; Dividend income; Garnishee notice; Income Tax; Loan Advance; Shareholder
• Section: 2(22)(e); 226(3)

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 33406 of 2009(U) -------------------------- PETITIONER(S): --------------- MRS.NISHI JEHANGIR, W/O.N.JEHANGIR, MACKAR MANZIL, ALUVA-683 101. BY ADV. SRI.T.M.SREEDHARAN SMT.C.K.SHERIN SRI.V.P.NARAYANAN RESPONDENT(S): --------------- 1. THE INCOME TAX OFFICER, WARD-4, ALUVA. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) II, SAN JUAN TOWERS, COCHIN-18. BY ADV. SRI. JOSE JOSEPH, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 33406 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd November, 2009. J U D G M E N T The petitioner is an assessee under the Income-tax Act. She is also a share holder in a private Company. The Company advanced large amounts to the petitioner. Originally, the petitioner was assessed to income tax for the year 2005-2006 without taking into account this advance. Later on, the assessment was revised in view of Section 2(22)(e) of the Income-tax Act, wherein, it is stipulated that any payment by a Company, not being a Public Limited Company, by way of loan or advance to a share holder who holds more than 10% share shall be deemed to be dividend income. Accordingly, by Ext. P1 order, the assessment of petitioner's income was revised adding the amounts received by her from the Company as dividend income and the petitioner was directed to pay an amount of Rs. 17,26,897/- as tax due. Against the same, the petitioner filed Ext. P2 appeal before the Commissioner of Income-tax (Appeals). Although the petitioner has filed Ext. P3 petition before the assessing officer requesting the assessing officer to treat the petitioner as not in default, the said request has been rejected. It is under the above circumstances the petitioner has approached this Court seeking the following reliefs: “(i) To call for the records of the case leading to the issue of Ext. P4 notice u/s. 226(3) and to quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction; (ii) To stay the operation of Ext. P4 garnishee notice issued u/s. 226(3) of the Act dated 26.10.2009, pending disposal of the W.P (C). (iii) To issue a writ of mandamus or any other appropriate order, writ or direction directing the 1st respondent to refrain from recovering any amount pursuant to the asst. order Ext. P1.” 2. I have heard the learned standing counsel for the Income-tax W.P.C. No. 33406/09 -: 2 :- Department also. 3. The appeal has been filed as early as on 28-1-2009. Of course, the petitioner can expect that the same be disposed of within a reasonable time. It has not happened so far. Therefore, I am inclined to pass some orders regarding recovery of the disputed tax. But, that cannot be without any conditions. I am of opinion that as a condition for stay, the petitioner should pay at least 50% of the amount demanded. Accordingly, this writ petition is disposed of with the following directions: The 2nd respondent shall consider and pass orders on Ext. P2 appeal as expeditiously as possible. In the meantime, coercive recovery proceedings for recovery of the disputed tax shall be kept in abeyance on condition that the petitioner pays 50% of the disputed tax in two instalments payable on or before 30-11-2009 and 31-12- 2009. S. Siri Jagan, Judge. Tds/ "