MRS.SIJI TONO V. UNION OF INDIA, REPRESENTED BY ITS SECRETARY,

WP(C)/19833/2012

AI Insights

The case involves three writ petitions filed by Mrs. Siji Tono and a partnership firm against various income tax authorities challenging the interim order passed by the Appellate Authority. The main dispute revolves around whether the property in question qualifies as agricultural property, which would exempt it from capital gains tax, or if it is to be considered commercial, thus attracting tax liabilities. The court's intervention was sought to address the interim financial obligations imposed by the appellate authority pending the final decision on the appeals.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 680055 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 22-01-2013
• Assessment Year: misc
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: P K R MENON; JOSE JOSEPH
• Assessee Lawyers: A K NAMBIAR; M NAMBIAR; P GOPINATH; P THOMAS; K MATHAI; PREETHA NAIR
• Keywords: Agricultural property; Appeal; Assessment Order; Capital Gains; Interim Stay

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND DAY OF JANUARY 2013/2ND MAGHA 1934 WP(C).No. 19833 of 2012 (D) ---------------------------------------- PETITIONER(S): ---------------------- MRS.SIJI TONO, FLAT NO. 12A,EXPRESS ESTATE,KALOOR KOCHI 682 017. BY ADVS.SRI.A.K.JAYASANKARAN NAMBIAR (SR.) 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 110 004. 2. COMMISSIONER OF INCOME TAX (APPEALS) 6TH FLOOR,KERA BHAVAN,S.R.V.H.S ROAD KOCHI 682 018. 3. COMMISSIONER OF INCOME TAX IS PRESS ROAD,C.R BUILDING,KOCHI 682 018. 4. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 2,(2),C.R BUILDING IS PRESS ROAD,KOCHI 682 018. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-01-2013, ALONG WITH WPC. 19834/2012, WPC. 19839/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.19833/2012 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1:-E COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008-09 DATED 31.12.2010 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P2:- COPY OF THE APPEAL DATED 21.02.2011 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3:- COPY OF THE STAY PETITION DATED 14.02.2012 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4:- COPY OF THE JUDGMENT DATED 21.02.2012 IN WPC NO. 4179 OF 2012 ISSUED BY THE HONOURABLE COURT TO THE PETITIONER. EXHIBIT P5:- COPY OF THE STAY ORDER OF THE 2ND RESPONDENT DATED 12.04.2012 TO THE PETITIONER. EXHIBIT P6:- COPY OF THE NOTICE OF HEARING OF THE APPEAL DATED 23.04.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P7:- COPY OF THE CHALAN DATED 03.05.2012 PRODUCED BY THE PETITIONER FOR THE PAYMENT OF THE FIRST INSTALMENT OF DEMAND AS PER THE DIRECTION OF THE 2ND RESPONDENT. EXHIBIT P8:- COPY OF THE ARGUMENT NOTE DATED NIL PRODUCED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P9:- COPY OF THE CHALAN DATED 05.06.2012 PRODUCED BY THE PETITIONER FOR THE PAYMENT OF THE SECOND INSTALMENT OF DEMAND AS PER THE DIRECTION OF THE 2ND RESPONDENT. EXHIBIT P10:- COPY OF THE EXTENSION OF TIME PETITION DATED 26.06.2012 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P11:- COPY OF THE ORDER EXTENDING TIME ON STAY ORDER DATED 29.06.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. RESPONDENTS' EXHIBITS NIL //TRUE COPY// P.A. TO JUDGE tss P.R. RAMACHANDRA MENON, J. --------------------------------------- W.P.(C). Nos. 19833, 19834 & 19839 of 2012 ---------------------------------------- Dated this the 22nd day of January, 2013 JUDGMENT Ext.P1 assessment order dated 31.12.2012 passed by the 4th respondent in respect of the assessment year 2008-2009 is under challenge. W.P.(C).No.19839/12 has been filed by the 'firm'; while the other two writ petitions have been preferred by the individual partners. 2. The issue involved in all these cases is with regard to the correctness and sustainability of the interim order passed by the Appellate Authority vide Ext.P5 whereby 50% disputed liability has been ordered to be satisfied by way of '5' equal monthly instalments so as to avail the benefit of interim stay. 3. Many a ground has been raised in the writ petitions. Sri. A.K. Jayasankaran Nambiar, the learned Senior Counsel appearing for the petitioners submits that, the main dispute is whether the property involved constitutes an agricultural property or not. If the issue is answered in favour of the W.P.C. Nos.19833,19834 &19839/12 -2- petitioner as contend by them, that the property is an agricultural property, then, there cannot be any further liability in respect of 'capital gains' and only if property is held otherwise, it will attract the liability, referring to the business income derived from the commercial property. The learned counsel also submits that, all the relevant facts and figures and the relevant provisions of law have been highlighted in Ext.P2 appeals and that they are pending consideration. By virtue of the course pursued by the appellate authority while granting interim order of stay, a large extent of liability has been mulcted upon the shoulders of the petitioner; which in turn is sought to be intercepted by this Court. 4. Heard the learned Standing Counsel appearing for the respondents as well. 5. Pursuant to the interception made by this Court, the petitioner in W.P.(C).No.19839/2012 (filed by the partnership firm) has already satisfied 'three' instalments ordered by the Appellate authority, whereas in the other two cases preferred by the partners, only two instalments have been satisfied. After hearing both the sides, this Court finds that the matter has to be W.P.C. Nos.19833,19834 &19839/12 -3- finalized by the Appellate Authority by passing appropriate orders on Ext.P2 appeals. Striking a balance in between, with regard to the condition imposed, this Court finds it fit and proper to direct both the petitioners in W.P.(C).Nos. 19833 & 19834 of 2012 to deposit one instalment more, so as to make it on par with the instalments already remitted by the petitioner firm in W.P.(C). Nos. 19839/2012. This shall be done forthwith at any rate, within '15' days from the date of receipt of a copy of this judgment. On satisfaction of the liability as above, the appellate authority, i.e., 2nd respondent shall consider and pass final orders on Ext.P2 appeals in accordance with law, as expeditiously as possible. The interim order will continue till such time; subject to satisfaction of the requirement as above. All these writ petitions are disposed of accordingly. P.R. RAMACHANDRA MENON, JUDGE. Kp/- "