By Advs.sri.harisankar v. Menonsmt.meera V.menonsmt.k.krishna

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941WP(C).No.11700 OF 2019(J) PETITIONER: M.BRIJESHAGED 44 YEARSS/O.RAMANKUTTY GUPTHAN, PROPRIETOR, M/S.GEETHAM SWEETS, 30/167, BIG BAZAR, PALAKKAD. BY ADVS.SRI.HARISANKAR V. MENONSMT.MEERA V.MENONSMT.K.KRISHNA RESPONDENTS: 1THE INCOME TAX OFFICER,WARD-1, PALAKKAD- 678014. 2THE COMMISSIONER OF INCOME TAX (APPEALS),3RD FLOOR, AAYAKAR BAHVAN, THRISSUR- 680001.3RD FLOOR, AAYAKAR BAHVAN, THRISSUR- 680001. 3UCO BANK,MARKET ROAD, PALAKKAD- 678001, REPRESENTED BY ITS BRANCH MANAGER.MARKET ROAD, PALAKKAD- 678001, REPRESENTED BY ITS BRANCH MANAGER. 4STATE BANK OF INDIA,MARKET ROAD, PALAKKAD- 678001, REPRESENTED BY ITS BRANCH MANAGER.MARKET ROAD, PALAKKAD- 678001, REPRESENTED BY ITS BRANCH MANAGER. 5INDIAN BANK,KANDATH COMPLEX, PALAKKAD- 678001, REPRESENTED BY ITSBRANCH MANAGER.KANDATH COMPLEX, PALAKKAD- 678001, REPRESENTED BY ITSBRANCH MANAGER. 6PALAKKAD DISTRICT CO-OPERATIVE BANK LTD.,SREEKRISHNAPURAM BRANCH, PALAKKAD DISTRICT, PIN- 679513, REPRESENTED BY ITS MANAGER.SREEKRISHNAPURAM BRANCH, PALAKKAD DISTRICT, PIN- 679513, REPRESENTED BY ITS MANAGER. R1-2 BY ADV. SRI.P.K.RAVINDRANATHA MENON (SR.) R1-2 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX R4 BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.) R4 BY SRI.AMAL GEORGE, SC, SBI R6 BY SRI.M.SASINDRAN, SC, PALAKKAD DIST.CO.OP.BANK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON10.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner has approached this Court aggrieved by the action of therespondent Income Tax Department in recovering an amount of Rs.39,35,313/-from the savings account of the petitioner towards a tax liability confirmedagainst the petitioner for the assessment years 2011-2012 and 2012-2013under the Income Tax Act. The facts in the Writ Petition would reveal thatagainst the assessments for the said years, the petitioner had preferredappeals before the 2[nd] respondent Appellate Authority. In the stay applicationthat was filed along with Appeal, for the assessment year 2011-2012 theAppellate Authority directed the petitioner to pay 15% of the confirmeddemand by an order dated 29.12.2016. The said amount of Rs.8,47,278/- hadto be paid by the petitioner in three monthly instalments. As against this, thepetitioner could effect a payment of only Rs.6,14,860/- leaving a balance ofRs.2,32,418/- as defaulted. Similarly, for the assessment year 2012-2013 byan order dated 11.01.2018 passed by the Assessing Authority, in anapplication under Section 220(2) of the Income Tax Act, the petitioner wasrequired to pay an amount of Rs.12,98,710/- within six months from the dateof the order. As against this, the petitioner paid an amount of Rs.6,75,000/-leaving a balance of Rs.6,22,091/- as defaulted. On finding that the petitionerhad not complied with the conditions for stay against recovery,, therespondent Income Tax Authority proceeded to recover the entire tax demandconfirmed against the petitioner from its Bank account. It is the said action ofthe Department that is impugned in these proceedings. 2. I have heard Sri.Harisankar V. Menon, the learned counsel for thepetitioner and Sri.Jose Joseph, the learned Standing Counsel for the IncomeTax Department. 2. I have heard Sri.Harisankar V. Menon, the learned counsel for thepetitioner and Sri.Jose Joseph, the learned Standing Counsel for the IncomeTax Department. 3. On a consideration of the facts and circumstances of the case andthe submissions made across the Bar, I find that it is not in dispute that asagainst the orders passed by the Appellate Authority/Assessing Authority, thepetitioner defaulted in an amount of Rs.8,54,509/-. It would normally follow,as a consequence, that on the default committed by the petitioner, he wouldlose the benefit of the stay order granted by the authority and the entireconfirmed tax demand would become payable to the Department. I notehowever, that the petitioner had approached this Court through W.P (C)No.10147 of 2019 and this Court had disposed the Writ Petition by Ext.P5judgment, wherein a direction was given to the 1[st] respondent to consider therequest of the petitioner for extension of time to comply with the order dated11.01.2018 of the 1[st] respondent. It is submitted across the Bar that evenbefore the contents of the judgment could be communicated to the 1[st]respondent, the 1[st] respondent had already taken steps to recover the entireconfirmed tax demands from the petitioner for both the assessment years. Taking note of the plea of financial hardship urged by the learnedcounsel for the petitioner, and the fact that, had the petitioner effectivelycomplied with the directions of the first Appellate Authority as also theassessing authority, he would have been obliged to pay only an amount ofRs.8,54,509/- which he did not, I deem it appropriate to dispose the WritPetition with the following directions: i.If the petitioner pays an amount of Rs.15,00,000/- in lieu ofthe balance Rs.8,54,509/- that he was required to pay out of theamounts ordered by the Assessing Authority/Appellate Authority, ascondition for the grant of stay of recovery of balance amountconfirmed against him by the assessment orders, then thethe balance Rs.8,54,509/- that he was required to pay out of theamounts ordered by the Assessing Authority/Appellate Authority, ascondition for the grant of stay of recovery of balance amountconfirmed against him by the assessment orders, then the respondents shall promptly, and at any rate within two weeks fromtoday, re-credit the balance amount from the amounts alreadyrecovered from the petitioner, to the respective Bank account. Inother words, the respondents shall retain an amount ofRs.15,00,000/- from the amount of Rs.39,35,313/- recovered by themfrom the account of the petitioner, and re-credit the balance amountof Rs.24,35,313/- to the petitioner's savings account maintained withthe 4[th] respondent Bank, within two weeks from today. ii.The 2[nd] respondent Appellate Authority shall thereafterproceed to hear the petitioner and pass final orders in the Appealspreferred by the petitioner for the assessment years 2011-2012 and2012-2013 respectively, within an outer time limit of six months fromthe date of receipt of a copy of this judgment. iii.It is made clear that on the respondents appropriating theamount permitted to be appropriated by this judgment, they shallrefrain from initiating coercive steps for recovery of any furtheramounts that were confirmed against the petitioner by theassessment orders for the aforementioned assessment years, tillsuch time as orders are passed by the Appellate Authority in theappeals aforementioned and the said appellate orders arecommunicated to the petitioner. Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE okb //True copy// P.S. to Judge APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12 DATED 29.12.2016.RESPONDENT FOR THE YEAR 2011-12 DATED 29.12.2016. EXHIBIT P1 ACOPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 30.12.2017.RESPONDENT FOR THE YEAR 2012-13 DATED 30.12.2017. Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE okb //True copy// P.S. to Judge APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12 DATED 29.12.2016.RESPONDENT FOR THE YEAR 2011-12 DATED 29.12.2016. EXHIBIT P1 ACOPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 30.12.2017.RESPONDENT FOR THE YEAR 2012-13 DATED 30.12.2017. EXHIBIT P2COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 13.12.2017.DATED 13.12.2017. EXHIBIT P2 ACOPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 11.01.2018.DATED 11.01.2018. EXHIBIT P3COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 06.02.2019.BEFORE THE 1ST RESPONDENT DATED 06.02.2019. EXHIBIT P4COPY OF NOTICE ISSUED BY THE 1ST RESPONDENTTO THE 3RD RESPONDENT BANK DATED 30.03.2019.TO THE 3RD RESPONDENT BANK DATED 30.03.2019. EXHIBIT P5COPY OF JUDGMENT IN W.P(C)NO.10147/2019 OF THIS HON'BLE COURT DATED 02.04.2019.THIS HON'BLE COURT DATED 02.04.2019. EXHIBIT P5 ACOPY OF JUDGMENT IN W.P(C)NO.10207/2019 OF THIS HON'BLE COURT DATED 02.04.2019.THIS HON'BLE COURT DATED 02.04.2019. EXHIBIT P6COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 05.04.2019.BEFORE THE 1ST RESPONDENT DATED 05.04.2019.