V.SHAREEF, V. DEPUTY COMMISSIONER OF INCOME TAX,

WP(C)/4728/2019

AI Insights

The case involves V. Shareef, the petitioner, who challenged the assessment orders for the years 2008-2009 to 2014-2015 issued by the Income Tax Department. The petitioner filed a writ petition against the conditional stay order (Ext.P24) issued by the appellate authority, which required the petitioner to deposit 20% of the total outstanding demand to stay recovery proceedings and have the appeal heard on merits. The petitioner argued that the order was not a proper judicial order as it lacked detailed reasoning and was merely a directive. The respondents defended the order, citing departmental circulars that allowed such conditional orders. The court agreed with the petitioner, noting the lack of detailed reasoning in the order and remanded the case for fresh consideration.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 763189 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-03-2019
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: PREMJIT NAGENDRAN; P RAGHUNATH
• Keywords: Assessment Order; Conditional Order; Stay Petition; Writ petition; Judicially Verifiable

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940 WP(C).No. 4728 of 2019 PETITIONER/S: V.SHAREEF,EXCEL PLAZA, KODAMPUZHA ROAD PETTA, FEROKE, CALICUT-673631. BY ADVS. SRI.PREMJIT NAGENDRAN SRI.P.RAGHUNATH RESPONDENT/S: 1 DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2, KOZHIKODE-673001. 2 COMMISSIONER OF INCOME TAX (APPEALS) III KOCHI-682036. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4728 of 2019 2 JUDGMENT As seen from the Exts.P1 to P8 the petitioner challenged the assessment orders for the assessment years 2008-2009 to 2014-2015. The appellate authority passed the Ext.P24 conditional order in the stay petition. Assailing the Ext.P24 the petitioner has filed this Writ Petition. 2. The learned counsel for the petitioner has strenuously contended that the Ext.P24 cannot be termed 'an order'. It is a mere statement or directive from the authority that the petitioner should deposit 20% of the demand to have the recovery proceedings stayed and to have the appeal heard on merits. In this context, the learned counsel strenuously contends that though the appellate authority has a discretion to stay the proceedings conditionally, the discretion must be exercised in the judicially varifyable manner and that requires an order impugned with reasons. He also reminds the Court that time and time again the Courts have held that any judicial directive which is non-speaking cannot be sustained. 3. The learned Standing Counsel, on the other hand, submitted WP(C).No. 4728 of 2019 3 that the appellate authority has a discretion to pass conditional orders. He has also submitted that the authority has perhaps been guided by the Department Circulars in force. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents. 5. Ext.P24 order, cryptic as it is, reads as follows: “xxxxxxx With respect to your above request, this is to inform you that stay of demand in your case can only be granted if you have deposited 20% of the total outstanding demand. In case you have paid the aforesaid demands, the recovery proceedings for the aforesaid demands are to be stayed till the disposal of your appeals before the undersigned. xxxxxxx” 6. As contended by the learned counsel for the petitioner, the appellate authority may have exercised its discretion but the manner of that exercise has not been spelt out in the Ext.P24. No doubt, an interim order, especially in the nature of a stay order, does not require detailed reasoning for adjudication. At the same time, the order must spell out the authority's prima facie opinion of the matter. And that is lacking here: The circular, the Standing Counsel has relied on, as produced now before the Court, does not seem to bind the appellate WP(C).No. 4728 of 2019 4 authority, though it binds at the lower echelons. Under these circumstances, I set aside the Ext.P24 and remand the matter to the appellate authority for fresh consideration of the stay petition. At any rate, it is left open for the appellate authority either to pass orders after hearing the petitioner or dispose of the appeal itself as per its convenience. Until the appellate authority acts in either way, the Department will defer coercive steps. Sd/- DAMA SESHADRI NAIDU JUDGE sd WP(C).No. 4728 of 2019 5 APPENDIX OF WP(C) 4728/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER FOR 2008-09. EXHIBIT P2 COPY OF DEMAND NOTICE FOR 2008-09. EXHIBIT P3 COPY OF DEMAND NOTICE FOR 2009-10. EXHIBIT P4 COPY OF DEMAND NOTICE FOR 2010-11. EXHIBIT P5 COPY OF DEMAND NOTICE FOR 2011-12 EXHIBIT P6 COPY OF DEMAND NOTICE FOR 2012-13. EXHIBIT P7 COPY OF DEMAND NOTICE FOR 2013-14. EXHIBIT P8 COPY OF DEMAND NOTICE FOR 2014-15. EXHIBIT P9 APPEAL AGAINST ASSESSMENT FOR 2008-09. EXHIBIT P10 APPEAL AGAINST ASSESSMENT FOR 2009-10. EXHIBIT P11 APPEAL AGAINST ASSESSMENT FOR 2010-11. EXHIBIT P12 APPEAL AGAINST ASSESSMENT FOR 2011-12. EXHIBIT P13 APPEAL AGAINST ASSESSMENT FOR 2012-13. EXHIBIT P14 APPEAL AGAINST ASSESSMENT FOR 2013-14. EXHIBIT P15 APPEAL AGAINST ASSESSMENT FOR 2014-15. EXHIBIT P16 COPY OF STAY PETITION FOR 2008-09. EXHIBIT P17 COPY OF STAY PETITION FOR 2009-10. EXHIBIT P18 COPY OF STAY PETITION FOR 2010-11. EXHIBIT P19 COPY OF STAY PETITION FOR 2011-12. EXHIBIT P20 COPY OF STAY PETITION FOR 2012-13. EXHIBIT P21 COPY OF STAY PETITION FOR 2013-14. EXHIBIT P22 COPY OF STAY PETITION FOR 2014-15. WP(C).No. 4728 of 2019 6 EXHIBIT P23 COPY OF JUDGMENT DATED 10.04.2018 IN WP(C) NO.12397/2018. EXHIBIT P24 COPY OF INTIMATION DATED 30.01.2019 ISSUED BY SECOND RESPONDENT. sd "