By Advs.sri.harisankar v. Menon Smt.meera V.menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 16TH DAY OF JANUARY 2017/26TH POUSHA, 1938 WP(C).No. 1236 of 2017 (D) --------------------------- PETITIONER(S):------------- M/S. POPULAR PRINTERS, VAKAYAR P.O., KONNI, PATHANAMTHITTA, REP. BY ITS MANAGING PARTNER, PRABHA THOMAS. BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT(S):-------------- 1. THE INCOME TAX OFFICER(TDS) ARATTUKULAKKARA COMPLEX, AN PURAM, ALAPPUZHA 688 011. ALAPPUZHA 688 011. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) SASTRI ROAD, KOTTAYAM 686 001. SASTRI ROAD, KOTTAYAM 686 001. 3. THE JOINT COMMISSIONER OF INCOME TAX (TDS) 3RD FLOOR, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPRUAM 695 003. 3RD FLOOR, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPRUAM 695 003. BY SRI.K.M.V.PANDALAI, SC, INCOME TAX DEPARTMENT BY SRI. CHRISTOPHER ABRAHAM, SC, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-01-2017, ALONG WITH WPC. 1239/2017, WPC. 1244/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: --------------------------- APPENDIX PETITIONER(S)' EXHIBITS----------------------- P1:YEAR 2013-14 DATED 17.5.2016YEAR 2013-14 DATED 17.5.2016 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE P1A: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2014-15 DATED 23.5.2016YEAR 2014-15 DATED 23.5.2016 P1B: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16 DATED 31.5.2016YEAR 2015-16 DATED 31.5.2016 P1C: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2016-17 DATED 12.8.2016YEAR 2016-17 DATED 12.8.2016 P2: COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 9.11.20162ND RESPONDENT DATED 9.11.2016 P2A: COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 9.11.20162ND RESPONDENT DATED 9.11.2016 P2B: COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 9.11.20162ND RESPONDENT DATED 9.11.2016 P2C: COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 9.11.20162ND RESPONDENT DATED 9.11.2016 P3: COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 27.12.201627.12.2016 P4: COPY OF THE INSTRUCTION NO. 1914 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES DATED 2.2.1993CENTRAL BOARD OF DIRECT TAXES DATED 2.2.1993 RESPONDENT(S)' EXHIBITS :NIL. //TRUE COPY// bp P.A. TO JUDGE K. VINOD CHANDRAN, J. ===================== W.P.(C)Nos.1236 - D, 1239-D and 1244 of 2017 - E =========================Dated this the 16[th] day of January, 2017 J U D G M E N T The petitioners herein are aggrieved by the orders passed in the interlocutory applications filed in an appealbefore the first Appellate Authority. The assessment years inall the cases are of the years from 2013-14 to 2016-17. Theallegations against all the three petitioners were of the TaxDeduction at Source (TDS), having not been made for paymentof interest in the deposits accepted by the petitioners, norForm Nos.15G/15H having been produced. The AssessingOfficer had demanded the tax deductible at source as also theinterest due under Sections 201(1) and 201(1)(a) of the IncomeTax Act, 1961. The contentions raised are that now thepetitioners have produced Form Nos.15G/15H for all theaforesaid years. W.P.(C)Nos.1236 - D, 1239-D and 1244 of 2017 - E 2. The learned Counsel appearing for the revenue passed in the interlocutory applications filed in an appealbefore the first Appellate Authority. The assessment years inall the cases are of the years from 2013-14 to 2016-17. Theallegations against all the three petitioners were of the TaxDeduction at Source (TDS), having not been made for paymentof interest in the deposits accepted by the petitioners, norForm Nos.15G/15H having been produced. The AssessingOfficer had demanded the tax deductible at source as also theinterest due under Sections 201(1) and 201(1)(a) of the IncomeTax Act, 1961. The contentions raised are that now thepetitioners have produced Form Nos.15G/15H for all theaforesaid years. W.P.(C)Nos.1236 - D, 1239-D and 1244 of 2017 - E 2. The learned Counsel appearing for the revenue would rely on the Office Memorandum [F.No.404/72/93-ITCC],dated 29.02.2016, wherein, as of now, a standardisation ofgrant of stay has been brought in by the Department bypermitting a stay of demand, till disposal of first appeal, onpayment of 15% of the disputed demand. The learnedCounsel for the respondent however relies on clause(b) ofparagraph 4, wherein, a blanket stay of the demand itself ismandated, when there is a decision of the Hon'ble SupremeCourt or the jurisdictional High Court, in favour of the assesse.3. The decision of the Allahabad High Court in v. Jagran Prakashan ltd.Deputy Commissioner of IncomeTax (TDS) [(2012) 345 ITR 288 (All)] is relied on by thepetitioners. The Appellate Authority has noticed the saidjudgment in its order. However, more pertinent would be the W.P.(C)Nos.1236 - D, 1239-D and 1244 of 2017 - E words employed in the Circular, which refers to a decision ofthe Hon'ble Supreme Court or the jurisdictional High Court. Insuch circumstance, based on the Allahabad High Courtjudgment, no stay can be demanded as a matter of right bythe assessee. 4. In W.P.(C) No.1239 of 2017, it is seen that about Rs.9.50 crores/- were assessed as the tax deductible for each ofthe years. The total demand is of Rs.32 crores and theassessee claimed to have filed Form Nos.15G/15H coming toalmost Rs.32crores. However, the assessee did not producethe documents before the Assessing Officer who has to verifyit. As of now, the assessee is in default and the orders cannotbe interfered with. In such circumstance, the assessee would berequired to make payment of atleast 15% of the disputeddemand, within a period of three months from the date of W.P.(C)Nos.1236 - D, 1239-D and 1244 of 2017 - E receipt of a certified copy of this judgment, failing which, the recovery proceedings shall continue. The facts and figures inall the writ petitions are almost similar and the same ordershall regulate payment in all of them. The writ petitions are disposed of with the above directions. Sd/- SB/16/01/2017 // true copy //P.A to Judge K. VINOD CHANDRAN, JUDGE