By Adv. Sri v. V. Asokan (Sr

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY TUESDAY, THE 7[th] DAY OF APRIL, 2020/18[th] CHAITHRA, 1941 PETITIONER: W.P.(C). No.9426 OF 2020 Niraamaya Retreats Pvt Ltd, Pulinkudi Mullur P.OKovalam, Thiruvananathapuram – 695527, Represented by its Chief Financial Officer - Mohan D Aiyar By Adv. Sri. V. V. Asokan (Sr.) Adv. Sri. V. V. Nandagopal Nambiar RESPONDENTS: 1. Assistant Commissioner of Income Tax, Officer of Assistant Commissioner of Income TaxAayakar Bhavan, Ist FloorKawdiar P.O, Officer of Assistant Commissioner of Income TaxAayakar Bhavan, Ist FloorKawdiar P.O, Thiruvananathapuram – 695003 2. Commissioner of Income Tax (Appeals),Office of the Commissioner of Income Tax Office of the Commissioner of Income Tax (Appeals), Aayakar Bhavan, 2[nd] Floor, Kawdiar P.O, Thiruvananathapuram – 695003 3. Principal Commissioner of Income Tax Office of the Principal Commissioner of Income Tax,Office of the Principal Commissioner of Income Tax, Aayakar Bhavan, 3[rd] Floor, Kawdiar P.O, Thiruvananathapuram – 695003 4. HDFC Bank Limited,Kenton Towers, DPI, Near Kalabhavan Theatre, Near Kalabhavan Theatre, Vazhuthacaud,Trivandrum, Kerala 695014Represented by its Branch ManagerRepresented by its Branch Manager 5. Andhra Bank RBTowers, Azhakulam,Muttackad, Trivandrum,Kerala 695014Represented by its Branch Manager 6. State Bank of IndiaFathima Building, Pachalloor Road, Vizhinjam, Trivandrum,Kerala 695521Represented by its Branch ManagerFathima Building, Pachalloor Road, Vizhinjam, Trivandrum,Kerala 695521Represented by its Branch Manager By Sri. Christopher Abraham, SC, Income Tax Department This Writ Petition having come up for admission on 07/04/2020, the Court on the same daypassed the following:- A.K. JAYASANKARAN NAMBIAR, J. & SHAJI P. CHALY, J. -------------------------------WP(C). No. 9426 OF 2020 ----------------------------------- Dated this the 7[th]day of April, 2020 J U D G M E N T A.K. Jayasankaran Nambiar, J. Against an order of assessment under the Income Tax Act, the petitionerpreferred an appeal before the First Appellate Authority, the 2[nd] respondent herein,and during the pendency of the appeal, the petitioner also approached the 1[st]respondent with a petition under Section 220(6) of the Income Tax Act for a stay ofrecovery pending disposal of the appeal. It would appear that the 1[st] respondent,on the application preferred by the petitioner, granted a stay of recovery of theamounts confirmed by the assessment order, on condition that the petitioner paidan amount equal to 20% of the tax demand. Not satisfied with the same, thepetitioner preferred a fresh petition under Section 220(6) before the 1[st] respondent.The said petition however did not result in any favourable order to the petitioner.It is the case of the petitioner that, although he thereafter approached the 2[nd]respondent with a stay petition seeking for a stay of recovery pending disposal ofthe appeal, the same was not considered by the 2[nd] respondent, and instead, the 1[st]respondent dismissed the said application in the light of the earlier order passed byhim. The petitioner would submit that the 2[nd] respondent Appellate Authority has since heard the appeal on 5.3.2020, and orders are awaited in the appeal. In themeanwhile, however, the respondents initiated garnishee proceedings and attachedthe bank accounts of the petitioner maintained with respondents 4 to 6 banks. Itis also stated that an amount of Rs.1,51,00357/-was withdrawn from the saidaccounts towards the tax liability of the petitioner. We are told that the amount ofRs.1,51,00357/-represents approximately 11% of the tax demand confirmedagainst the petitioner. The prayer in the writ petition, at this stage, is essentiallyfor a lifting of the attachment orders over the bank accounts of the petitionermaintained with respondents 4 to 6 banks, and to stay further recoveryproceedings till such time as final orders are passed by the 2[nd] respondent in theappeal pending before him. 2. We heard Sri.V.V.Asokan, the learned senior counsel duly assisted bySri.Nandagopal Nambiar, the learned counsel for the petitioner and alsoSri.Christopher Abraham, the learned Standing Counsel for the respondents. 3. On a consideration of the facts and circumstances of the case, as also thesubmissions made across the bar, we find that inasmuch as the respondents havealready recovered an amount of Rs.1,51,00357/- from the petitioner throughgarnishee proceedings, and the appeal preferred by the petitioner against theassessment order has been heard finally by the 2[nd] respondent Appellate Authority,who is expected to pass orders in the appeal in the near future, there need not be afurther recovery effected from the petitioner at this stage. Accordingly, whileupholding the recovery already effected by the respondents for the time being, wedeem it to be sufficient for safeguarding the interests of the revenue pendingdisposal of the appeal by the 2[nd] respondent. 4. Accordingly, the writ petition is disposed, by directing the respondents to liftthe attachment over the bank accounts of the petitioner maintained withrespondents 4 to 6 banks forthwith, with a further direction to the 2[nd] respondentto pass final orders in the appeal within an outer time limit of two months from thedate of receipt of a copy of this judgment. It is also made clear that till such time asorders are passed by the 2[nd] respondent, as directed and the order communicatedto the petitioner, further proceedings for recovery of amounts confirmed againstthe petitioner by the assessment order in question shall be kept in abeyance. Thepetitioner shall also be permitted to operate the bank accounts maintained withrespondents 4 to 6 during the said period. The writ petition is disposed as above. (Sd/-)A.K.JAYASANKARAN NAMBIARJUDGE prp/7/4/2020 (Sd/-)SHAJI P. CHALYJUDGE