PAZHAYAKUNNUMMEL SERVICE CO-OPERATIVE BANK LTD.NO.1517 V. THE INCOME TAX OFFICER

WP(C)/2601/2016

AI Insights

The case involves the Pazhayakunnummel Service Co-operative Bank Ltd., which challenged a conditional stay order imposed by the Commissioner of Income Tax (Appeals) regarding an assessment order for the year 2008-2009. The petitioner argued that the appellate authority should have granted an unconditional stay, referencing similar cases where such stays were granted without conditions. The court agreed with the petitioner's contention, noting that the appellate authority failed to consider precedents set by the High Court in similar cases, which warranted an unconditional stay on recovery proceedings during the appeal's pendency.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 755570 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 12-02-2016
• Assessment Year: misc
• Other Referred Cases: W.P.(C) No. 28927 of 2015, W.P.(C) No. 39464 of 2015
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: K M V PANDALAI
• Assessee Lawyers: V G ARUN; T R HARIKUMAR; ARJUN RAGHAVAN; ADITHYA RAJEEV
• Keywords: Appeal; Assessment Order; Conditional stay; Income Tax; Unconditional Stay
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAY ASANKARAN NAMBIAR FRIDAY, THE 12TH DAY OF FEBRUARY 2016/23RD MAGHA, 1937 WP(C).No. 2601 of 2016 (A) --------------------------------------------- PETITIONER(S) : ------------------------- PAZHAYAKUNNUMMEL SERVICE CO-OPERATIVE BANK LTD.NO.1517, REPRESENTED BY ITS SECRETARY , KILLIMANOOR P.O, THIRUVANANTHAPURAM DISTRICT- 695 601. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN SRI.ADITHYA RAJEEV RESPONDENT(S) : ---------------------------- 1. THE INCOME TAX OFFICER, WARD-2(5), OFFICE OF THE JOINT COMMISSIONER OF INCOME TAX, RANGE-2, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM DISTRICT- 695 003. 2. THE COMMISSIONER OF INCOME TAX(APPEALS), THIRUVANANTHAPURAM- 695 003. BY ADV.SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Msd. WP(C).No. 2601 of 2016 (A) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS : ---------------------------------------- EXT.P1: A TRUE COPY OF THE CERTIFICATE DATED 29.04.1999, ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. EXT:P2: A TRUE COPY OF THE RELEVANT PAGES OF THE BYELAWS OF THE PETITIONER SOCIETY. EXT:P3: A TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008-2009 DATED 27.03.2014. EXT:P4: A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ALONG WITH COVERING LETTER DATED 09.04.2014. EXT:P5: A TRUE COPY OF THE STA Y PETITION DATED 16.09.2015, FILED BY THE PETITIONER IN EXT.P4 APPEAL. EXT:P6: A TRUE COPY OF THE INTERIM ORDER DATED 30.09.2014 IN I.A.NO.2364/2014 IN ITA NO.188/2014. EXT:P7: A TRUE COPY OF THE JUDGMENT DATED 25.09.2015 IN WP(C)NO.28927 OF 2015. EXT:P8: A TRUE COPY OF THE ORDER IN ITA NO.14/TVM/CIT(A) TVM/ 2014-15 DATED 08.01.2016. EXT:P9: A TRUE COPY OF THE JUDGMENT DATED 23.12.2015 IN WP(C)NO.39464 OF 2015. RESPONDENT(S)' EXHIBITS : ------------------------------------------- NIL //TRUE COPY// P.A.TO JUDGE. Msd. A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.2601 Of 2016 ............................................................. Dated this the 12th day of February, 2016 J U D G M E N T The challenge in the writ petition is against Ext.P8 conditional order of stay passed by the 2nd respondent in a stay application filed along with an appeal against an order of assessment under the Income Tax Act for the assessment year 2008-2009. The grievance of the petitioner in the writ petition is that although he could not appear before the 2nd respondent on the date when the stay application was posted, the 2nd respondent proceeded to pass Ext.P8 order insisting on a payment of 50% of the amounts confirmed against the petitioner by the assessment order as a condition for the grant of stay of recovery of balance during the pendency of the appeal. It is the case of the petitioner that on a similar issue various income tax appeals are pending before a Division Bench of this Court, where this Court granted an unconditional stay. It is contended, therefore, that the 2nd respondent appellate authority while considering the stay petition ought to have taken note of the orders passed by this Court in -2- W.P.(C). No. 2601 of 2016 connected matters and granted an unconditional stay rather than a conditional stay requiring him to pay 50% of the demand confirmed against him during the pendency of the appeal. 2. I have heard the learned counsel for the petitioner and also the learned Standing counsel for the respondents. 3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that, although, the petitioner was not represented before the 2nd respondent at the time of hearing of the stay petition, the ground of challenge in the writ petition against Ext.P8 order is not that the order is vitiated on account of violation of the principles of natural justice. The petitioner contends that on merits, the issue is one where the 2nd respondent ought to have taken note of the orders passed by this Court staying recovery proceedings pending disposal of the appeal, and granted an unconditional stay. I find force in the said contention of the learned counsel for the petitioner and insofar as the 2nd respondent has passed only a conditional order of stay, I quash Ext.P8 order and direct the 2nd respondent to consider and pass orders in the appeal itself within a -3- W.P.(C). No. 2601 of 2016 period of four months from the date of receipt of a copy of this judgment after hearing the petitioner. The recovery steps for recovery of amounts confirmed against the petitioner by Ext.P3 assessment order shall be kept in abeyance till such time as orders are passed by the 2nd respondent as directed and communicated to the petitioner. The petitioner shall produce a copy of the writ petition along with a copy of this judgment before the 2nd respondent for further action. A.K.JAYASANKARAN NAMBIAR JUDGE mns/12.02.16 "