M/S.SUNNY & SUNNY'S V. THE JOINT COMMISSIONER

WP(C)/8956/2012

AI Insights

The case involves M/S Sunny & Sunny's, represented by its director Jaya Sunny, who filed a writ petition against the income tax assessment order for the year 2009-2010. The petitioner had already filed an appeal against the assessment order and sought relief from the High Court to quash the order directing payment of the balance tax in installments. The petitioner argued that they had already paid substantial amounts towards the assessed tax and cited a precedent from the High Court of Allahabad which held that recovery proceedings must be stayed pending appeals in similar cases. The court, however, suggested that the petitioner first seek a stay through the appellate authority before approaching the High Court.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 740086 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 12-04-2012
• Assessment Year: misc
• Other Referred Cases: Mrs. Mani Goyal vs. CIT reported at 217 ITR 641 (AII)
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: SUNNY
• Keywords: Appeal; Income tax assessment; Instalment payment; Stay of recovery
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934 WP(C).No. 8956 of 2012 (T) -------------------------- PETITIONER(S): ------------- M/S.SUNNY & SUNNY'S 40/8060 RADEEP, MULLASSERY CANAL ROAD, KOCHI-35, REP. BY ITS DIRECTOR JAYA SUNNY. BY ADV. SUNNY - PARTY RESPONDENT(S): -------------- 1. THE JOINT COMMISSIONER RANGE-4, KOCHI-682 018. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) II KOCHI-682 011. 3. THE COMMISSIONER OF INCOME TAX -1, ERNAKULAM-682 018. BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX W.P.C. NO. 8956/2012 PETITIONER(S) EXHIBITS EXHIBIT P1. TRUE COPY OF THE ASST. ORDER AND DEMAND NOTICE DATED 30/12/2011 AND ITS CORRIGENDUM DATED 31/12/2011. EXHIBIT P2. TRUE COPY OF THE APPEAL DATED 28/1/2012 FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). EXHIBIT P3. TRUE COPY OF THE LETTER DATED 12/3/2012 FILED BEFORE THE COMMISSIONER OF INCOME TAX, KOCHI. EXHIBIT P4. TRUE COPY OF THE ORDER DATED 16/3/2012 OF THE COMMISSIONER OF INCOME TAX, KOCHI. EXHIBIT P5. TRUE COPY OF THE CHALLAN SHOWING THE PAYMENT OF RS.30 LAKHS ON 23/3/2012. EXHIBIT P6. TRUE COPY OF THE PETITION DATED 27/2/2012 ADDRESSED TO THE COMMISSIONER OF INCOME TAX (APPEALS)II. EXHIBIT P7. TRUE COPY OF THE JUDGM,ENT IN THE CASE OF MRS.MANI GOYAL VS.CIT REPORTED AT 217 ITR 641 (AII). RESPONDENTS' EXHIBITS: NIL. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 8956 of 2012 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 12th day of April, 2012. J U D G M E N T Against the income tax assessment order for the year 2009- 2010, the petitioner has filed Ext.P2 appeal. Pending that appeal, the petitioner moved the assessing authority for treating the petitioner as not in default. The assessing authority has now directed the petitioner to pay the balance tax in instalments. The petitioner is aggrieved by the same. According to the petitioner, the petitioner has already paid substantial amounts towards payment of the tax assessed. The petitioner submits that the assessing authority has assessed income much more than the returned income and in such cases, the High Court of Allahabad in Ext.P7 held that recovery proceedings must be stayed pending appeals. The petitioner seeks the following reliefs: “A. issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P4 order dated 16.3.2012 of the 3rd respondent to the extent of the grant of instalments for payment of the arrears of tax; B. issue an appropriate writ , order or direction, directing the 2nd respondent Commissioner of Income tax (Appeals) II , Ernakulam to dispose of Ext.P6 petition dated 27.2.12 and dispose of the appeal pending before him early and to direct the respondents not to treat the petitioner as an assessee in default till then.” 2. I have heard the learned standing counsel for the Income-tax Department also. 3. I am of opinion that insofar as the petitioner has a remedy by way of filing a stay petition in the appeal pending before the appellate authority, the petitioner should seek that remedy first. In the above circumstances, this writ petition is disposed of with the following directions: The petitioner shall file an application for stay before the 2nd respondent in Ext.P2 appeal within one week from today. The 2nd respondent shall consider and pass orders on the same as expeditiously as possible, at any rate, within one month from the date of receipt of the application. Till orders are thus passed, coercive recovery of the balance tax as per Ext.P1 assessment order shall be kept in abeyance. Sd/- S. Siri Jagan, Judge. Tds/ "