Op(Crl.)/652/2010 Of Sathar E.m v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 OP(Crl.).No. 652 of 2010(Q) ------------------------------------- ( CMP 1768/2010 ON THE FILE OF JFCM -II, HODURG,KASARAGOD, DIST ) ------------------- PETITIONER(S) / PETITIONERS : --------------------------------------------- SATHAR.E.M,AGED 33 YEARS, S/O.MOIDEENKUNHI,RESIDING AT EYYALA HOUSE, BENDICHAL,THEKKIL VEEDU,CHENGALA, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): RESPONDENTS ------------------------------------------------ 1. THE INCOME TAX OFFICER,KASARAGOD, P.O.KASARAGOD.PIN-671 121. 2. SHARAFUDDEEN.P.P,S/O.ABDUL RAHIMAN, AGED 20 YEARS,RESIDING AT BENDICHAL, THEKKIL,KASARAGOD DISTRICT.P.O.THEKKIL 671 541 BY GOVERNMENT PLEADER SRI. I.V. PRAMOD THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ---------------------------------------------O.P.(Crl).NO.652 OF 2010 ---------------------------------------------Dated 10[th] November, 2010 JUDGMENT Pursuant to Ext.P1 order in Crl.M.C.5047/2008, petitioner was permitted tohave interim custody of the cash seized inCrime No.135/2008 of Bekal Police Station.Subsequently, based on the assessment order,Income Tax Officer approached the learnedMagistrate for a direction to the petitionerto deposit Rs.5,68,560/-, being the incometax payable by the petitioner as assessed. Ext.P3 notice was issued by the learnedMagistrate in that application, directing himto appear before the Magistrate on 19/6/2010.This petition is filed under Article 227 ofConstitution of India for a writ of mandamusdirecting Judicial First Class Magistrate-II, Hosdurg to keep in abeyance further OP(Crl) 652/10 proceedings in C.M.P.1768/2010, contendingthat challenging the order of dismissal,petitioner had already filed Ext.P2 appealbefore Commissioner (Appeals) of Income Tax,Kozhikode. Case of the petitioner is thatif before disposal of the appeal, petitioneris to pay the amount as assessed by theIncome Tax Authorities, which is challengedin the appeal, the appeal itself will becomeinfructuous. 2. Learned counsel appearing for the petitioner and learned Standing Counselappearing for first respondent were heard.3.Petitioner did not produce copyof C.M.P.1768/2010 which was sought to bekept in abeyance by issuing a writ ofmandamus. The fact that petitioner filedExt.P2 appeal against the order passed bythe Income Tax Officer, is not a ground to contend that he is not liable to pay thatamount. So long as there is no order ofstay, learned Magistrate can proceed withapplication. It is upto the petitioner toseek an order of stay in Ext.P2 appeal. Learned counsel appearing for thepetitioner submitted that the appeal is notposted for a particular day and therefore,petitioner could not get an order of stay. Writ petition is disposed directingJudicial First Class Magistrate's Court-II, Hosdurg to keep in abeyance furtherproceedings in C.M.P.1768/2010 for threeweeks from today making it clear that it isupto the petitioner to get an order from theAppellate Authority, before that date. uj. M.SASIDHARAN NAMBIAR,JUDGE.