SUBHASH CHANDRAN.P V. THE COMMISSIONER OF INCOME TAX (APPEALS)

WP(C)/25786/2017

AI Insights

The petitioner, Subhash Chandran, approached the High Court of Kerala challenging the conditional stay order (Ext.P7) issued by the Commissioner of Income Tax (Appeals). The stay order required the petitioner to pay 50% of the outstanding tax demand in installments, which the petitioner contested due to liquidity issues. The court reviewed the case, noting that the appellate authority had followed the court's previous directions to consider the stay petition without a personal hearing, as there was no such directive in the earlier judgment (Ext.P6). After considering the petitioner's financial difficulties, the court modified the payment terms of the stay order but upheld the rest of the order.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 767677 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 10-08-2017
• Assessment Year: misc
• Other Referred Cases: W.P(C) 6160/2017
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: K M V PANDALAI
• Assessee Lawyers: BIJU BALAKRISHNAN; V S RAKHEE; P V JEEVESH
• Keywords: Appeal; Assessment Order; Income Tax; Stay order
• Section: 271(1)(c); 274

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939 WP(C).No. 25786 of 2017 (W) ---------------------------- PETITIONER: ------------------- SUBHASH CHANDRAN.P, SHYJU COTTAGE, B.T.S ROAD, ATTINGAL, THIRUVANANTHAPURAM. BY ADVS.SRI.BIJU BALAKRISHNAN SMT.V .S.RAKHEE SRI.P.V.JEEVESH RESPONDENT(S): ------------------------- 1. THE COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN, KAUDIAR, THIRUVANANTHAPURAM, PIN-695003. 2. THE JOINT COMMISSIONER OF INCOME TAX, RANGE-I, 2ND FLOOR, AAYAKAR BHAVAN, KAUDIAR P.O., THIRUVANANTHAPURAM, PIN-695003. 3. INCOME TAX OFFICER, WARD (3), KAUDIAR P.O., THIRUVANANTHAPURAM, PIN-695003. BY SRI. K.M.V.P ANDALAI, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sdr/- WP(C).No. 25786 of 2017 (W) ---------------------------- APPENDIX ---------------- PETITIONER(S)' EXHIBITS ---------------------------------- EXHIBIT-P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 23/03/2015 OF THE 2ND RESPONDENT EXHIBIT-P2 TRUE COPY OF THE NOTICE UNDER SEC. 274 R/W SEC. 271 (1) (C) OF THE INCOME TAX ACT DATED 23/03/2015 EXHIBIT-P3 TRUE COPY OF THE DEMAND NOTICE DATED 23/03/2015 OF THE 3RD RESPONDENT EXHIBIT-P4 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE IST RESPONDENT EXHIBIT-P5 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE IST RESPONDENT EXHIBIT-P6 TRUE COPY OF THE JUDGMENT DATED 01/03/2017 IN W.P(C) 6160/2017 EXHIBIT-P7 TRUE COPY OF THE ORDER BY THE IST RESPONDENT DATED 06/07/2017 RESPONDENT(S)' EXHIBITS NIL --------------------------------------- /TRUE COPY/ PA TO JUDGE sdr/- A.K.JAYASANKARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25786 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of August, 2017 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P7 conditional order of stay, passed by the 1st appellate authority, in proceedings under the Income Tax Act. In the writ petition, it is the case of the petitioner that, while passing Ext.P7 order, the 1st respondent, did not exercise his discretion validly. 2. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from a perusal of Ext.P7 order that, the said order was passed pursuant to the directions of this Court in Ext.P6 judgment, whereby, in a writ petition filed by the petitioner, this Court had directed the appellate authority to consider and pass orders on the stay petition, within a period of two months from the date of receipt of a certified copy of this judgment. It is also made clear that, coercive proceedings will be kept in abeyance till such time as orders were passed as directed. It is relevant to note that, in Ext.P6 judgment, there was no direction to the appellate authority to afford a personal hearing W.P.(c).No.25786 of 2017 : 2 : to the petitioner. On a perusal of Ext.P7, I find, however, that the appellate authority had sent a notice dated 16.05.2017 to the petitioner, fixing 12.06.2017 as the date for a hearing. It is seen from Ext.P7 order that, when neither the petitioner nor his representative appeared for the hearing on the date fixed, an effort was made to contact the petitioner over telephone on 03.07.2017, and it is when despite the said effort, the petitioner did not appear for a hearing, that Ext.P7 order was passed by the 1st respondent. On a perusal of Ext.P7 order, I do not find it to be vitiated on account of any jurisdictional error or arbitrariness, or on account of a non- compliance with the rules of natural justice, so as to warrant an interference with the same in these proceedings under Article 226 of the Constitution of India. 4. The learned counsel for the petitioner would submit that the petitioner is currently facing liquidity problems, and hence, the directions in Ext.P7 order, that require him to pay 50% of the balance demand outstanding in installmens, may be modified. Taking note of the said plea of the learned counsel for the petitioner, while sustaining the reasoning in Ext.P7 order, I deem it in the interests of justice to modify the directions therein to read that there will be a stay of 70% of the demand and the petitioner would be required to W.P.(c).No.25786 of 2017 : 3 : pay only the balance 30% of the demand, in six equal and successive monthly installments, commencing from 20.08.2017. Save for this modification, the challenge in the writ petition against Ext.P7 order is otherwise, dismissed. The petitioner shall produce a copy of this writ petition along with a copy of this judgment, before the 1st respondent, for further action. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE sm/ "