Op(Crl.)/878/2011 Of Sathar E.m v. The Income Tax Officer,Kasargod

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 OP(Crl.).No. 878 of 2011(Q) --------------------------------- (CMP. 1768/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, HOSDURG) ....... PETITIONER/PETITIONER ------------------------------ SATHAR.E.M,AGED 33 YEARS, S/O.MOIDEENKUNHI,R/AT EYYALA HOUSE, BENDICHAL,THEKKIL VILLAGE,CHENGALA, KASARAGOD DISTRICT. BY ADVS. SRI.T.K.VIPINDAS SMT.P.K.PRIYA SRI.K.V.SREEVINAYAKAN RESPONDENT(S): RESPONDENT ------------------------------------- THE INCOME TAX OFFICER, KASARAGOD - 671 121,P.O. KASARAGOD. BY ADV. SRI.JOSE JOSEPH, SC., INCOME TAX THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(Crl).No.878 of 2011 --------------------------------------- Dated this 09[th] day of March, 2011 JUDGMENT It is alleged that a sum of Rupees Forteen Lakhs was seizedfrom the possession of a relative of petitioner. For release of thesaid amount petitioner filed C.M.P.No.935 of 2008 while therespondent filed C.M.P.No.1159 of 2008. Learned Magistratedismissed the claim of petitioner and allowed the claim ofrespondent. Those orders were challenged in this Court inCrl.M.C.No.5047 of 2008 and this Court by Ext.P1, order directedrelease of the amount to the petitioner subject to conditions.There was a direction to the petitioner to produce bankguarantee for a period of one year and in case proceedingsinitiated by the respondent (for assessment of tax) is notcompleted within the said period the bank guarantee was to beextended for a further period. That condition was complied by thepetitioner. While so, respondent assessed petitioner and orderedhim to pay `.5,68,560/- as tax. That order is under challenge atthe instance of petitioner before the appellate authority.Petitioner has also moved an application for stay of operation ofthe said order, it is contended, but appropriate order could not be obtained since the post of Commissioner of Income Tax who is tohear the appeal is remaining vacant. In the meantime,respondent filed C.M.P.No.1768 of 2010 to collect the sum of`.5,68,560/- from out of the bank guarantee. On that petition,learned Magistrate issued notice to the petitioner. Petitioner filedO.P(Crl).No.652 of 2010 for a direction to the learned Magistrateto keep C.M.P.No.1768 of 2010 in abeyance pending disposal ofappeal from the order of assessment. This Court passed Ext.P4,order directing learned Magistrate to keep in abeyanceproceedings for a period of three weeks from 10.11.2010 makingit clear that in the meantime it is open to the petitioner to getappropriate order from the Appellate Authority which is toconsider his challenge to the assessment made by therespondent. Petitioner produced Ext.P4, order before theAppellate Authority but, since post of Commissioner of IncomeTax is remaining vacant no order could be obtained. LearnedStanding Counsel for respondent submits that even Ext.P5,application was not preferred within the period of three weeksreferred to in Ext.P4, order. 2.Now the challenge is to order passed by the learnedMagistrate on 02.02.2011 on C.M.P.No.1768 of 2010 directingpetitioner to pay `.5,68,560/- to the respondent as per order ofassessment within fifteen days. Learned counsel submitted that 2.Now the challenge is to order passed by the learnedMagistrate on 02.02.2011 on C.M.P.No.1768 of 2010 directingpetitioner to pay `.5,68,560/- to the respondent as per order ofassessment within fifteen days. Learned counsel submitted that since the post of Commissioner of Income Tax remains vacanteven now. Ext.P2, appeal preferred by petitioner could not betaken up so far and no order of stay could be obtained. In thecircumstances it is prayed that Ext.P6, order dated 02.02.2011on C.M.P.No.1768 of 2010 be kept in abeyance. LearnedStanding Counsel for respondent submitted that even if theamount is paid, in case the appeal is allowed in favour ofpetitioner the amount could be refunded to the petitioner withinterest as provided under Sec.244A of the Income Tax Act. 3.Having heard counsel on both sides and having regardto the respective contentions I do not think it necessary to keepin abeyance Ext.P6, order. The amount paid by petitionerpursuant to Ext.P6, order can only be subject to the appealpreferred by petitioner and in case the appeal is allowed whollyor in part and the order of assessment is either nullified ormodified, necessarily the amount payable to the petitioner has tobe refunded to him with interest as provided in the provisionreferred to above. Hence it is not necessary to keep Ext.P6, orderin abeyance. Resultantly this petition is disposed of directing that thepayment (to be) made by petitioner pursuant to Ext.P6, order willbe subject to the result of Ext.P2, appeal preferred by petitionerbefore the appropriate authority and in case the appeal is allowed O.P(Crl).No.878 of 2011 -: 4 :- in whole or in part and the assessment order is annulled ormodified, and accordingly amount is due to the petitioner,respondent shall refund such amount with interest as providedunder Sec.244A of the Income Tax Act. (THOMAS P JOSEPH, JUDGE) Sbna/-