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

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934 WP(C).No. 21028 of 2012 (C) --------------------------- PETITIONER : -------------------- M/S.DAMAC HOLDINGS PVT. LTD 32/2241 A, CIVIL LANE ROAD, PALARIVATTOM KOCHI-682 025, REPRESENTED BY ITS DIRECTOR C.BALASUBRAMANIAM. BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): -------------------------- 1. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-I, ERNAKULAM-682 015. CENTRAL CIRCLE-I, ERNAKULAM-682 015. 2. COMMISSIONER OF INCOME TAX (APPEALS) ERNAKULAM-689 013. ERNAKULAM-689 013. 3. TAX RECOVERY OFFICER OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX RANGE-I, C.R.BUILDINGS, I.S.PRESS ROAD ERNAKULAM-682 018. OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX RANGE-I, C.R.BUILDINGS, I.S.PRESS ROAD ERNAKULAM-682 018. 4. COMMISSIONER OF INCOME TAX (CENTRAL) 6TH FLOOR, KANDANKULATHY TOWERS, M.G.ROAD ERNAKULAM, KOCHI-11. 6TH FLOOR, KANDANKULATHY TOWERS, M.G.ROAD ERNAKULAM, KOCHI-11. 5. INCOME TAX APPELLATE TRIBUNAL KOCHI BRANCH, 1ST FLOOR, KENDRIYA BHAVAN KAKKANADU, KOCHI-682 037 REPRESENTED BY ITS ASST. REGISTRAR. KOCHI BRANCH, 1ST FLOOR, KENDRIYA BHAVAN KAKKANADU, KOCHI-682 037 REPRESENTED BY ITS ASST. REGISTRAR. BY ADV. SRI.P.K.R.MENON, SR.COUNSEL, GOI (TAXES) BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21028 of 2012 (C) APPENDIX PETITIONERS' EXHIBITS : EXT.P1 : COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT DTD.28.12.2009.DTD.28.12.2009. EXT.P2 : COPY OF APPELLATE ORDER ISSUED BY THE 2ND RESPONDENT DTD.28.5.2012.DTD.28.5.2012. EXT.P3 : COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DTD.27.6.2012. EXT.P4 : COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DTD.14.8.2012. EXT.P5 : COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DTD.14.8.2012.RESPONDENT DTD.14.8.2012. EXT.P6 : COPY OF ORDER ISSUED BY THE 3RD RESPONDENT DTD.27.12.2011. EXT.P7 : COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DTD.18.7.2012.RESPONDENT DTD.18.7.2012. EXT.P8 : COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DTD.22.8.2012.RESPONDENT DTD.22.8.2012. EXT.P9 : COPY OF ORDER ISSUED BY THE 4TH RESPONDENT DTD.4.9.2012. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn ANTONY DOMINIC, J. ================ W.P.(C) NO. 21028 OF 2012 =================== Dated this the 18[th] day of September, 2012 J U D G M E N T Heard the learned counsel for the petitioner and also thelearned standing counsel appearing for the respondents. 2.Petitioner is a private limited company engaged in real estate development. For the assessment year 2008-09, Ext.P1order was passed by the 1[st] respondent fastening liability on thepetitioner. Against that order, petitioner filed appeal in whichExt.P2 order was passed by the appellate authority reducing theliability to a considerable extent. That order was implementedand accordingly, Ext.P3 revised order was passed. That wassubsequently rectified and Ext.P4 was issued. As a result of thewhole exercise, now the liability of the petitioner according tothem is around `2.15 crores. Against Ext.P2, the petitioner hasfiled Ext.P5 appeal which is pending consideration of the 5[th]respondent Tribunal. In the meantime, by Ext.P6 order issued bythe 3[rd] respondent, the properties mentioned therein wereattached. According to the petitioner, they want to utilise theproperty and therefore they made Ext.P7 requesting to lift the attachment. There was no response to Ext.P7 and therefore theymade Ext.P8 reiterating the request for lifting the attachment buthowever offering the property having an extent of 98.664 centscomprised in R.S.Nos.303/5, 303/6, 303/7, 303/8 and 303/9covered by document No.4044/07 and situated in Thengode,Kakkanad as alternate security. Petitioner also pointed out thataccording to them, the value of the property is more than `2.95crores. However by Ext.P9 dated 4/9/12, they were informed thatthe request for release of the property attached by Ext.P6accepting the property offered in Ext.P8 cannot be considered “atthis stage”. It is in these circumstances, the writ petition is filed. 3.I heard the learned counsel appearing for therespondents also. 4.Admittedly, the appeal filed by the petitioner againstExt.P2 order is pending consideration of the Tribunal. Theintention of attaching the property mentioned in Ext.P6 is only tosecure the interest of the respondents pending disposal of theappeal. If that interest of the respondents could be secured bymaking available other property or by other means or by both,there is no reason why the request of the petitioner shall not be considered. 5.In this case although the valuation of the propertymentioned in Ext.P8 has not been done by any external agency,still going by the statements contained in Ext.P8, the propertymentioned therein is worth `2.95 crores. Therefore, there is noreason to continue the attachment covered by Ext.P6 once thepetitioner furnishes adequate security to take care of the interestof the respondents. With this in mind, I dispose of the writ petitionwith the following directions:- (1)That the petitioner shall deposit an amount of`75,00,000/- (Rupees Seventy five lakhs only)within one month.`75,00,000/- (Rupees Seventy five lakhs only)within one month. (2)Petitioner shall also deposit the title deedspertaining to the property mentioned in Ext.P8 withthe 1[st] respondent.pertaining to the property mentioned in Ext.P8 withthe 1[st] respondent. (3)I record the submission made on behalf of thepetitioner that the property is free fromencumbrance and that they will not deal with theproperty in any manner until the appeal is decidedand the documents are released. :4 : (4)Once the petitioner complies with the abovedirections, the attachment effected as per Ext.P6will be lifted. (5)The 5[th] respondent Tribunal is directed todispose of Ext.P5 appeal with notice to the partiesconcerned and as expeditiously as possible. ANTONY DOMINIC, JUDGE