THE CHOICE FOUNDATION V. ASSISTANT COMMISSIONER OF INCOME TAX (EXEMPTION)

WP(C)/6772/2016

AI Insights

The case involves The Choice Foundation, which challenged the conditional stay orders imposed by the Commissioner of Income Tax (Appeals) regarding tax assessments for the assessment years 2010-11, 2011-12, and 2012-13. The petitioner argued that the 2nd respondent did not validly exercise discretion in imposing the condition of paying 40% of the assessed amount for a stay on recovery actions. The court found that the 2nd respondent failed to provide reasons for this condition, which is required even when granting a conditional stay, as per the ruling in Archana Agencies v Commercial Tax Officer.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 755566 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 23-02-2016
• Assessment Year: misc
• Other Referred Cases: Archana Agencies v Commercial Tax Officer - 2014 (2) KLT 715
• Laws Referred To: Archana Agencies v Commercial Tax Officer - 2014 (2) KLT 715
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: K M V P ANDALA
• Assessee Lawyers: V V ASOKAN; K I MATHER; R JAIKRISHNA
• Keywords: Assessment Order; Conditional stay; Discretion; Exemption; Income Tax
• Section: 147; 148; 143(3); 153A; 68

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937 WP(C).No. 6772 of 2016 (V) --------------------------- PETITIONER(S): -------------------------- THE CHOICE FOUNDATION, CHOICE HOUSE, P.V. SREEDHARAN ROAD, KUMBALAM, KOCHI-682 506, REPRESENTED BY ITS GENERAL MANAGER (FINANCE AND ADMINISTRATION)-XAVIER GREGORY. BY SRI.V.V. ASOKAN, SENIOR ADVOCATE. ADVS. SRI.K.I.MAYANKUTTY MATHER, SRI.R.JAIKRISHNA. RESPONDENT(S): ---------------------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX (EXEMPTION), CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), KERA BHAVAN, KOCHI-682 011. 3. DEPUTY DIRECTOR OF INCOME TAX (EXEMPTION), RANGE IV, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. 4. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. BY ADV. SRI.K.M.V.P ANDALAI, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. WP(C).No. 6772 of 2016 (V) APPENDIX PETITIONER'S EXHIBITS:- P1 : TRUE COPY OF THE REASONS FOR INITIATING PROCEEDINGS ISSUED BY 3RD RESPONDENT DATED NIL. P2 : TRUE COPY OF THE REASONS FOR INITIATING PROCEEDINGS ISSUED BY 3RD RESPONDENT DATED NIL. P3 : TRUE COPY OF THE REPLY FILED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 03-06-2014. P4 : TRUE COPY OF THE REPLY FILED BY THE PETITIONER TO 3RD RESPONDENT DATED 03-06-2014. P5 : TRUE COPY OF THE LETTER ISSUED BY 1ST RESPONDENT TO THE PETITIONER DATED 12-02-2015. P6 : TRUE COPY OF THE LETTER ISSUED BY 1ST RESPONDENT TO THE PETITIONER DATED 12-02-2015. P7 : TRUE COPY OF THE WRITTEN SUBMISSION FILED BY THE PETITIONER DATED 10-01-2014. P8 : TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE RESPONDENTS 1 AND 3 (AY-2010-11) DATED 10-03-2015. P9 : TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE RESPONDENTS 1 AND 3 (AY-2011-12) DATED 15/01/2014. P10 : TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY RESPONDENTS 1 AND 3 (AY-2012-13) DATED 10-03-2015. P11 : TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE 2ND RESPONDENT (AY 2010-11) DATED 21-04-2015. P12 : TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE 2ND RESPONDENT (AY 2011-12) DATED 18-02-2014. P13 : TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE 2ND RESPONDENT (AY 2012-13) DATED 09-04-2015. P14 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO. 20967/2015 DATED 10-07-2015. .....2/- WP(C).No. 6772 of 2016 (V) P15 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO. 8807/2014 DATED 26-03-2014. P16 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO.18533/2015 DATED 22-06-2015. P17 : TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY 4TH RESPONDENT DATED (AY 2010-11) DATED 06-08-2015. P18 : TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY 4TH RESPONDENT (AY 2011-12) DATED 06-08-2015. P19 : TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY 4TH RESPONDENT (AY 2012-13) DATED 12-08-2015. P20 : TRUE COPY OF THE CONDITIONAL STAY ORDER ISSUED BY 2ND RESPONDENT (AY 2010-11) DATED 04-12-2015. P20A : TRUE COPY OF THE CONDITIONAL STAY ORDER ISSUED BY 2ND RESPONDENT (AY 2011-12) DATED 04-12-2015. P20B : TRUE COPY OF THE CONDITIONAL STAY ORDER ISSUED BY 2ND RESPONDENT (AY 2012-13) DATED 04-12-2015. P21 : TRUE COPY OF THE DEMAND NOTICE ISSUED BY 3RD RESPONDENT (AY 2010-11) DATED 30-12-2015. P21A : TRUE COPY OF THE DEMAND NOTICE ISSUED BY 3RD RESPONDENT (AY 2011-12) DATED 30-12-2015. P21B : TRUE COPY OF THE DEMAND NOTICE ISSUED BY 3RD RESPONDENT (AY 2012-13) DATED 30-12-2015. P22 : TRUE COPY OF THE HEARING NOTICE ISSUED BY THE 2ND RESPONDENT DATED 05-01-2016. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs. A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.6772 Of 2016 ............................................................. Dated this the 23rd day of February, 2016 J U D G M E N T Against Exts.P8 to P10 assessment orders, petitioner preferred Exts.P11 to P13 appeals before the 2nd respondent. Along with the appeals, the petitioner had also preferred stay petitions. The 2nd respondent has now passed Ext.P20 series of orders on the stay petition directing the petitioner to pay 40% of the amount as a condition for the grant of stay against recovery of the balance amounts confirmed against the petitioner vide Exts.P8 to P10 assessment orders. 2. In the writ petition, the petitioner impugns the said conditional order of stay, inter alia, on the ground that the 2nd respondent had not exercised his discretion validly while passing the said order. 3. I have heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents. -2- W.P.(C). No.6772 of 2016 On a consideration of the facts and circumstances of the case and submissions made across the bar, I dispose the writ petition with the following directions:- (i) In Ext.P20 series of orders, the 2nd respondent does not state reasons as to why the petitioner was required to deposit the amounts as a condition for the grant of stay. This Court has held in Archana Agencies v Commercial Tax Officer - 2014 (2) KLT 715 that an authority considering a stay petition is bound to give reasons even while granting conditional stay. (ii) Ext.P20 series of orders are quashed and the 2nd respondent is directed to reconsider the matter and pass fresh orders in the stay petition, within one month from the date of receipt of a copy of this judgment after hearing the petitioner. (iii) Recovery steps, if any, initiated against the petitioner shall be kept in abeyance till such time as fresh orders are -3- W.P.(C). No.6772 of 2016 passed by the 2nd respondent as directed above and communicated to the petitioner. A.K.JAYASANKARAN NAMBIAR JUDGE mns/23.02.16 "