T.SELVARAJ V. UNION OF INDIA

WP(C)/8885/2017

AI Insights

The case involves T. Selvaraj, the petitioner, who contested the actions of the Assessing Officer regarding a tax demand exceeding Rs. 1,36,00,000. After initially paying 15% of the demanded amount and filing an appeal, the petitioner sought a stay on the recovery proceedings, which was initially declined by the Assessing Officer. The High Court had previously set aside this decline and directed a reconsideration of the stay application. Despite these directions, the Assessing Officer insisted on a fresh application for stay and continued to demand payment in installments. The court found these actions to be in non-compliance with its earlier judgment and thus set aside the Assessing Officer's order, granting a stay on the demand until the appellate authority makes a decision.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 740828 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 29-03-2017
• Assessment Year: misc
• Other Referred Cases: WPC NO. 31825/2016
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: N NAGRESH; JOSE JOSEPH
• Assessee Lawyers: GIKKU JACOB
• Keywords: Appeal; Assessment Order; Income Tax; Stay Petition; Recovery Demand
• Section: 156

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 29TH DAY OF MARCH 2017/8TH CHAITHRA, 1939 WP(C).No. 8885 of 2017 (I) --------------------------- PETITIONER(S): ------------------------ T. SELV ARAJ, SREE MOOKAMBIKA LUCKY CENTRE, THIRUNAKKARA, KOTTAYAM - 686 001. BY ADV. SRI.GIKKU JACOB. RESPONDENT(S): --------------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY , MINISTRY OF FINANCE, NEW DELHI - 110 001. 2. COMMISSIONER OF INCOME TAX (APPEALS), INCOME TAX DEPARTMENT, PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTA YAM - 686 001. 3. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE - 1 KOTTAYAM, OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - I, PUBLIC LIBRARY BUILDING, IIND FLOOR, SASTRI ROAD, KOTTAY AM. R1 BY SRI.N.NAGARESH, ASSIST. S.G. OF INDIA. R2 & R3 BY SRI.JOSE JOSEPH, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. WP(C).No. 8885 of 2017 (I) APPENDIX PETITIONER'S EXHIBITS:- P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 23.03.2016 PASSED BY THE 3RD RESPONDENT. P2 TRUE COPY OF DEMAND NOTICE UNDER SECTION 156 OF THE INCOME TAX ACT 1961 ISSUED TO THE PETITIONER. P3 TRUE COP YOF THE SHOW CAUSE NOTICE DATED 23.03.2016 ISSUED BY 3RD RESPONDENT TO THE PETITIONER. P4 TRUE COPY OF THE APPEAL MEMORANDUM DATED 25.04.2016 BEFORE THE 2ND RESPONDENT. P5 TRUE COPY OF THE THE REVISED GUIDELINES DATED 29.02.2016. P6 TRUE COPY OF THE STAY PETITION DATED 27.05.2016 FILED BEFORE 3RD RESPONDENT. P7 TRUE COPY OF OF THE ORDER DATED 07.07.2016 OF 3RD RESPONDENT. P8 TRUE COPY OF THE NOTICE DATED 22.09.2016 ISSUED BY 3RD RESPONDENT TO MANAGER, STATE BANK OF TRAV ANCORE, MAIN BRANCH, KOTTA YAM. P8(A) TRUE COPY OF THE DEPUTY DIRECTOR (PRIZE) STATE LOTTERIES, THIRUVANANTHAPURAM. P8(B) TRUE COPY OF THE DISTRICT LOTTERY OFFICER, KOTTAYAM. P8(C) TRUE COPY OF THE MANAGER, INDIAN OVERSEAS BANK, KOTTAYAM. P8(D) TRUE COPY OF THE MANAGER KOTTAYAM DISTRICT URBAN CO-OPERATIVE BANK, THIRUNAKKARA, KOTTAY AM. P8(E) TRUE COPY OF THE BRANCH MANAGER, DISTRICT CO-OPERATIVE BANK, CENTRAL JUNCTION, KOTTAYAM. P8(F) TRUE COPY OF THE DISTRICT LOTTERY OFFICER, PATHANAMTHITTA. P8(G) TRUE COPY OF THE DISTRICT LOTTERY OFFICER, THODUPUZHA. P8(H) TRUE COPY OF THE DISTRICT LOTTERY OFFICER, ALAPPUZHA. ....2/- WP(C).No. 8885 of 2017 (I) P8(I) TRUE COPY OF THE BRANCH MANGER, PUNJAB NATIONAL BANK, KOTTA YAM. P8(J) TRUE COPY OF THE MANAGER, SOUTH INDIAN BANK, CENTRAL JUNCTION, KOTTA YAM. P9 TRUE COPY OF TAX PAYER'S COUNTERFOIL EVIDENCING PAYMENT OF RS.20,55,000/- P10 TRUE COPY OF JUDGMENT DATED 30.09.2016 IN WPC NO. 31825/2016 OF THIS HON'BLE COURT. P11 TRUE COPY OF ORDER OF STAY DATED 23.11.2016 PASSED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs. K. VINOD CHANDRAN, J. ------------------------------------------ W.P.(C) No. 8885 of 2017 (I) ------------------------------------------ Dated: 29th March, 2017 J U D G M E N T The petitioner is aggrieved with Ext.P11 order of the Assessing officer. 2. The petitioner's contention is that the proceedings for recovery were directed to be kept in abeyance and the stay petition filed considered afresh by Ext.P10 judgment; in total non compliance of which, the Officer has proceeded with. There was a demand raised by the Assessing Officer of an amount of more than Rs.1,36,00,000/-. The petitioner had also filed an appeal from the aforesaid order. The petitioner, on filing an appeal from the order, paid 15% of the amount on 26.09.2016, i.e. Rs.20,55,000/- and approached the Assessing Officer for a stay of recovery. W.P.(C) No. 8885/2017 -2- 3. The stay was declined on flimsy reasons, according to the petitioner. The petitioner challenged the said order before this Court. By Ext.P10, the order rejecting the stay application was set aside. The Assessing Officer was directed to reconsider the application for stay and the recovery was kept in abeyance till a reconsideration is made. 4. The Assessing Officer is said to have insisted, on the petitioner filing a fresh application for stay with a request for installment also. If that was done immediately he should have informed this Court about the said coercion. The petitioner submits that he subjected to the coercion and filed such an application, which was considered and disposed of by Ext.P11. It is also submitted that on the day on which Ext.P10 was passed, there was an adjustment made of refund of Rs.26,18,540/- towards the dues of the impugned W.P.(C) No. 8885/2017 -3- assessment order. The assessee had also paid a sum of Rs.28,10,380/- on 10.11.2016. Despite more than 50% of the total demand having been remitted, again, the Assessing Officer has directed payment of the balance demand in instalments of Rs.2 lakh per month. 5. Considering the entire facts, this Court is of the opinion that there shall be a stay of the demand since considerable amounts are paid, till the appeal is disposed of by the appellate Authority. Ext.P11, hence, shall stand set aside. The writ petition is disposed of. The allegations if true are quite grave and the Officer would stand cautioned. Sd/- K.VINOD CHANDRAN, JUDGE jjj 29/3/17 "