SATHAR E.M V. THE INCOME TAX OFFICER,KASARGOD

OP(Crl.)/878/2011

AI Insights

The case involves a dispute between Sathar E.M, the petitioner, and the Income Tax Officer, Kasaragod, the respondent, concerning the release and subsequent payment of a seized amount of Rupees Fourteen Lakhs and an assessed tax of `.5,68,560/-. Initially, the petitioner sought the release of the seized amount, which was granted under certain conditions including the provision of a bank guarantee. Following the tax assessment, the petitioner challenged the assessment order and sought a stay, which was complicated by the vacancy in the Commissioner of Income Tax's position. The respondent then moved to collect the assessed tax from the bank guarantee, leading to the current proceedings.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 699540 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 09-03-2011
• 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 K VIPINDAS; P K PRIYA; K V SREEVINAYAKAN
• Keywords: Appeal; Bank guarantee; Income Tax; Seizure; Stay of Operation; Tax assessment
• Section: 244A

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 OP(Crl.).No. 878 of 2011(Q) --------------------------------- (CMP. 1768/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, HOSDURG) ....... PETITIONER/PETITIONER ------------------------------ SATHAR.E.M,AGED 33 YEARS, S/O.MOIDEENKUNHI,R/AT EYYALA HOUSE, BENDICHAL,THEKKIL VILLAGE,CHENGALA, KASARAGOD DISTRICT. BY ADVS. SRI.T.K.VIPINDAS SMT.P.K.PRIYA SRI.K.V.SREEVINAYAKAN RESPONDENT(S): RESPONDENT ------------------------------------- THE INCOME TAX OFFICER, KASARAGOD - 671 121,P.O. KASARAGOD. BY ADV. SRI.JOSE JOSEPH, SC., INCOME TAX THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(Crl).No.878 of 2011 --------------------------------------- Dated this 09th day of March, 2011 JUDGMENT It is alleged that a sum of Rupees Forteen Lakhs was seized from the possession of a relative of petitioner. For release of the said amount petitioner filed C.M.P.No.935 of 2008 while the respondent filed C.M.P.No.1159 of 2008. Learned Magistrate dismissed the claim of petitioner and allowed the claim of respondent. Those orders were challenged in this Court in Crl.M.C.No.5047 of 2008 and this Court by Ext.P1, order directed release of the amount to the petitioner subject to conditions. There was a direction to the petitioner to produce bank guarantee for a period of one year and in case proceedings initiated by the respondent (for assessment of tax) is not completed within the said period the bank guarantee was to be extended for a further period. That condition was complied by the petitioner. While so, respondent assessed petitioner and ordered him to pay `.5,68,560/- as tax. That order is under challenge at the instance of petitioner before the appellate authority. Petitioner has also moved an application for stay of operation of the said order, it is contended, but appropriate order could not be O.P(Crl).No.878 of 2011 -: 2 :- obtained since the post of Commissioner of Income Tax who is to hear the appeal is remaining vacant. In the meantime, respondent filed C.M.P.No.1768 of 2010 to collect the sum of `.5,68,560/- from out of the bank guarantee. On that petition, learned Magistrate issued notice to the petitioner. Petitioner filed O.P(Crl).No.652 of 2010 for a direction to the learned Magistrate to keep C.M.P.No.1768 of 2010 in abeyance pending disposal of appeal from the order of assessment. This Court passed Ext.P4, order directing learned Magistrate to keep in abeyance proceedings for a period of three weeks from 10.11.2010 making it clear that in the meantime it is open to the petitioner to get appropriate order from the Appellate Authority which is to consider his challenge to the assessment made by the respondent. Petitioner produced Ext.P4, order before the Appellate Authority but, since post of Commissioner of Income Tax is remaining vacant no order could be obtained. Learned Standing Counsel for respondent submits that even Ext.P5, application was not preferred within the period of three weeks referred to in Ext.P4, order. 2. Now the challenge is to order passed by the learned Magistrate on 02.02.2011 on C.M.P.No.1768 of 2010 directing petitioner to pay `.5,68,560/- to the respondent as per order of assessment within fifteen days. Learned counsel submitted that O.P(Crl).No.878 of 2011 -: 3 :- since the post of Commissioner of Income Tax remains vacant even now. Ext.P2, appeal preferred by petitioner could not be taken up so far and no order of stay could be obtained. In the circumstances it is prayed that Ext.P6, order dated 02.02.2011 on C.M.P.No.1768 of 2010 be kept in abeyance. Learned Standing Counsel for respondent submitted that even if the amount is paid, in case the appeal is allowed in favour of petitioner the amount could be refunded to the petitioner with interest as provided under Sec.244A of the Income Tax Act. 3. Having heard counsel on both sides and having regard to the respective contentions I do not think it necessary to keep in abeyance Ext.P6, order. The amount paid by petitioner pursuant to Ext.P6, order can only be subject to the appeal preferred by petitioner and in case the appeal is allowed wholly or in part and the order of assessment is either nullified or modified, necessarily the amount payable to the petitioner has to be refunded to him with interest as provided in the provision referred to above. Hence it is not necessary to keep Ext.P6, order in abeyance. Resultantly this petition is disposed of directing that the payment (to be) made by petitioner pursuant to Ext.P6, order will be subject to the result of Ext.P2, appeal preferred by petitioner before the appropriate authority and in case the appeal is allowed O.P(Crl).No.878 of 2011 -: 4 :- in whole or in part and the assessment order is annulled or modified, and accordingly amount is due to the petitioner, respondent shall refund such amount with interest as provided under Sec.244A of the Income Tax Act. (THOMAS P JOSEPH, JUDGE) Sbna/- "