THRISSUR DISTRICT POLICE CO-OPERATIVE SOCIETY LTD. V. ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/36664/2022

AI Insights

The case involves the Thrissur District Police Co-operative Society Ltd. as the petitioner, who approached the High Court of Kerala challenging the order (Ext.P2) issued by the 2nd respondent, the Commissioner of Income Tax, which decided the petitioner's stay application without a hearing. The petitioner argued that the stay petition was not properly decided as it did not specify the amount to be paid for the stay. The respondents contended that the matter was considered thoroughly and the only pending action was the calculation of the exact amount payable by the petitioner, which was to be done by the assessing officer. The court found merit in the respondents' arguments but still imposed conditions for the stay to avoid further controversy.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 681638 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 16-11-2022
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: ANIL NAIR; TELMA EDATHARA; VINEETA KRISHNAN; P K BIJU; ANJANA A
• Keywords: Appeal; Assessment Order; Income Tax; Stay Petition
• Section: 80P

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 16TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944 WP(C) NO. 36664 OF 2022 PETITIONER: THRISSUR DISTRICT POLICE CO-OPERATIVE SOCIETY LTD. THRISSUR DISTRICT POLICE CO-OPERATIVE SOCIETY LTD. ACP OFFICE THRISSUR P.O THRISSUR, KERALA, PIN - 680001 BY ADVS. ANIL D. NAIR TELMA RAJU EDATHARA VINEETA KRISHNAN P.K.BIJU ANJANA A. RESPONDENTS: 1 ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX INCOME TAX OFFICER NATIONAL FACELESS ASSESSMENT CENTRE NEW DELHI , PIN - 110001 2 COMMISSIONER OF INCOME TAX COMMISSIONER OF INCOME TAX NATIONAL FACELESS APPEAL CENTRE NEW DELHI, PIN - 110001 3 THE INCOME TAX OFFICER THE INCOME TAX OFFICER WARD - 2(1) AAYKAR BHAVAN, SHAKTHAN THAMPURAN NAGAR MUNCIPAL OFFICE ROAD THRISSUR, PIN - 680001 OTHER PRESENT: 0 ADV. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P. (C) No. 36664 of 2022 2 JUDGMENT Dated this the 16th day of November, 2022 The petitioner has approached this Court being aggrieved by the fact that by Ext.P2 order of the 2nd respondent, the stay petition of the petitioner has been decided without affording to the petitioner an opportunity of being heard. It is also submitted that the 2nd respondent has not actually decided the stay petition and has directed the assessing officer to consider the stay petition also keeping in mind the provisions of the official memorandum issued by the board regarding the grant of stay pending consideration of appeals. 2. The learned counsel appearing for the petitioner states that since Ext.P2 order has been issued without affording to the petitioner an opportunity of hearing and also considering the fact that the 2nd respondent has not decided the amount to be paid by the petitioner as a condition for stay, Ext.P2 order is liable to be set aside and the matter is to be remanded to the 2nd W.P. (C) No. 36664 of 2022 3 respondent for consideration of the stay petition afresh. 3. The learned standing counsel appearing for the respondent department refers to Ext.P2 order and points out that the contentions raised by the learned counsel for the petitioner are not correct. He points out that the 2nd respondent has considered the matter in extenso and has reached a conclusion that the demands against the petitioner can be stayed pending consideration of the appeal on condition that the petitioner remits an amount equivalent to 20% of the demand after excluding amounts which are claimed to be 'double taxation' and also excluding the amounts relatable to deductions under 80P of the Income Tax Act, 1961. It is submitted that it is only for the purposes of calculating the exact amount payable by the petitioner that the matter has been sent to the assessing officer. It is submitted that there is absolutely nothing wrong in Ext.P2 order and the petitioner has no real grievance in the matter. It is also pointed out that even if the opportunity of oral hearing has W.P. (C) No. 36664 of 2022 4 not been extended to the petitioner, the 2nd respondent had considered the written submissions made by the petitioner while considering the stay petition. 4. Having heard the learned counsel appearing for the petitioner and the learned standing counsel appearing for the respondent department, I am of the view that there is considerable merit in the contentions taken by the learned counsel appearing for the respondent department that Ext.P2 does not suffer from any vice requiring it to be set aside in exercise of jurisdiction under Article 226 of the Constitution of India. Even if the opportunity of oral hearing has not been extended to the petitioner it appears that the contentions raised by the petitioner through written submissions have been considered by the 2nd respondent. That apart, the 2nd respondent has not relegated the consideration of the stay petition to the assessing officer as contended by the learned counsel for the petitioner. The 2nd respondent has only directed the assessing W.P. (C) No. 36664 of 2022 5 officer to calculate the amounts payable in terms of Ext.P2 order. 5. Faced with this situation, the learned counsel appearing for the petitioner states that the amount now directed to be paid as a condition for stay is extremely onerous. It is submitted that the 2nd respondent has not properly considered the merits of the petitioner's claim in the appeal and if that had been properly considered he would have granted an absolute stay without imposing any conditions. It is submitted that the tax demand is only Rs.5 crores and if the petitioner is required to pay 20% of approximately Rs.12 crores as a condition for stay, the petitioner would be put to serious injury, prejudice and hardship. Having regard to the aforesaid submissions, I am of the view that in order to shorten the litigation and to avoid further controversy, the demands against the petitioner can be stayed by imposing conditions. Accordingly, this writ petition will stand disposed of directing that if the petitioner pays a sum of Rs.1.25 crores in three equal instalments commencing from 15.12.2022, W.P. (C) No. 36664 of 2022 6 the demands arising out of the assessment order for the assessment year 2016-2017 shall remain stayed pending disposal of the appeal filed against the said assessment order. Sd/- GOPINATH P. JUDGE RMV W.P. (C) No. 36664 of 2022 7 APPENDIX OF WP(C) 36664/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 1.6.2022 IN W.P. (C) NO.17757 OF 2022 FOR THE A.Y. 2016-17. Exhibit P2 TRUE COPY OF THE PROCEEDINGS DATED 27.08.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit P3 TRUE COPY OF NOTICE DATED 30.08.2022 FOR THE A.Y. 2016-17 ISSUED BY THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE REPLY DATED 5.9.2022 BEING THE REPLY TO EXHIBIT P3 NOTICE Exhibit P5 TRUE COPY OF ORDER DATED 3.11.2022 FOR THE A.Y. 2016-17 ISSUED BY THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE "