The Learned Counsel For The v. Income Tax Officer Wp(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMASFRIDAY, THE 24 DAY OF SEPTEMBER 2021 / 2ND ASWINA,1943 WP(C) NO. 17984 OF 2021 PETITIONER: NATHERSHA PAREEKUNJU MATHRAKKATTUAGED 48 YEARSS/O. PAREEKUNJU, PRESENTLY RESIDING AT FLAT NO.03, DIWANIYA STREET MATAR QADEEM, DOHA, QATAR, P.O. BOX 22487 PERMANENT ADDRESS AT MATHRAKKATTU HOUSE, PINARMUNDA, PERINGALA P.O., 683 565, ERNAKULAM DISTRICT, KERALA STATE.BY ADVS.S.SAJUA.V.SAJANNEELANJANA NAIRPOOJA SEBASTIAN RESPONDENTS: 1THE COMMISSIONER OF INCOME TAX (APPEALS)G-51, PARAPILLY LN, MANORAMA JUNCTION, GIRI NAGAR, PANAMPILLY NAGAR, KOCHI, KERALA 682 036.2THE INCOME TAX OFFICERCENTRAL REVENUE BUILDING, I S PRESS ROAD, KACHERIPADY, KOCHI, KERALA-682 018.BY ADVS.P.K.RAVINDRANATHA MENON (SR.)JOSE JOSEPH, SC, FOR INCOME TAXTHIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 24.09.2021, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: BECHU KURIAN THOMAS, J ................................................ W.P.(C) No.17984 of 2021 …........................................ TH day of September, 2021 Dated this the 24 JUDGMENT Petitioner claims to be an NRI againstwhom Ext.P1 order of assessment was issued bythe 2[nd]respondent. Challenging Ext.P1, petitioner has preferred Ext.P3 appeal beforethe 1[st] respondent. Inspite of the aforesaidappeal, petitioner has filed this writpetition, challenging Ext.P1 assessment orderas well as Ext.P2 and Ext.P6-demand noticesapart from Ext.P8 communication. Ext.P2 andExt.P8 are intimations directing the petitionerto deposit 20% of the total demand raised,based upon an office memorandum of 2016, forgrant of stay of the demand notice issued tothe petitioner. 2. As mentioned earlier, Petitioner has already preferred Ext. P3 appeal before the first respondent and it is during the pendencyof the said appeal that petitioner was servedwith Ext.P2 and P8 intimations. Reliance wasplaced by the 2[nd] respondent on the officememorandum No.F404/72-93-ITCC issued by theCBDT dated 29/2/2016 and its subsequentrevision on 31/7/2017, to direct the deposit of20% of the demand for staying the proceedingsfor recovery of the tax imposed. 3. O.M. dated 29/2/2016 referred toabove, was revised on 31/7/2017 wherein thequantum of deposit was increased to 20% from15% for granting a stay of the demand made bythe Income Tax Officer. 4. The learned counsel for the petitioner relies upon Ext.P9 judgment of thisCourt as well as a Division Bench judgment ofthe High Court Of Delhi in Turner GeneralEntertainment Networks India PVT.LTD. vs. Income Tax Officer WP(c)No.682 of 2019 dated22/1/2019. He canvasses for the proposition that in view of the office memorandum, theAppellate Authorities are granting stay only ondeposit of 20% of the entire demand and thattoo as a pre-deposit. 5. The learned Standing Counsel Adv.Sri.Jose Joseph on the other hand submitsthat, the Appellate Authorities are quasi-judicial bodies exercising the power ofadjudication and hence the office memorandumare not binding upon them. According to thelearned Standing Counsel, if the petitionermoves the Appellate Authority seeking stay ofthe order impugned, the same is bound to beconsidered,dehorsany office memorandum,directing predeposits. 6. Having considered the submissions ofthe Adv. Saju S Nair learned counsel for thepetitioner, as well as the learned Standingcounsel, Adv. Jose Joseph, this Court is of theopinion that Exts.P2 and P8 directing depositof 20% of the total demand are both made by the 5. The learned Standing Counsel Adv.Sri.Jose Joseph on the other hand submitsthat, the Appellate Authorities are quasi-judicial bodies exercising the power ofadjudication and hence the office memorandumare not binding upon them. According to thelearned Standing Counsel, if the petitionermoves the Appellate Authority seeking stay ofthe order impugned, the same is bound to beconsidered,dehorsany office memorandum,directing predeposits. 6. Having considered the submissions ofthe Adv. Saju S Nair learned counsel for thepetitioner, as well as the learned Standingcounsel, Adv. Jose Joseph, this Court is of theopinion that Exts.P2 and P8 directing depositof 20% of the total demand are both made by the Income Tax Officer and not by the Appellateauthority. Petitioner has not yet moved anyapplication for stay of the assessment order inthe pending appeal, before the 2[nd] respondent.As rightly pointed out by the learned Standingcounsel, the Appellate Authorities are notbound by any office memorandum issued by thedepartment,sincetheyareexercisingadjudicatory powers and possess discretionarypowers. 7. In considering the grant of staypending appeal, the High Court of Delhi hadclearlyobservedinTurnerGeneral Entertainment Networks case (supra) that while,the authorities concerned have to apply theirmind to decide such applications and passappropriate orders independent of the officememorandum. The judgment of the High Court ofKerala, produced as Ext.P9, stands on adifferent footing since, in that case, thisCourt had directed the consideration of the appeal without insisting on any deposit due tothe peculiar nature of the facts involved inthat case. 8. In view of the above deliberations, I am of the opinion that the petitioner, if he is so advised, ought to move an appropriateapplication for stay before the AppellateAuthority. If such an application is preferred,needless to say, the appellate authority shallpass appropriate orders within a period of twomonths from the date of receipt of such anapplication. Further, if the Appellate Authority feels it desirable to consider andpass orders on the appeal itself, liberty isgranted to the Appellate Authority to do so. The writ petition is disposed of accordingly. Sd/- BECHU KURIAN THOMAS JUDGE AJM APPENDIX OF WP(C) 17984/2021 PETITIONER’S EXHIBITS: Exhibit P1TRUE COPY OF THE ASSESSMENT ORDER OFTHE 2ND RESPONDENT DATED 18.12.2019.THE 2ND RESPONDENT DATED 18.12.2019. Exhibit P2TRUE COPY OF THE DEMAND NOTICE OF THE 2ND RESPONDENT DATED 10.2.2020.THE 2ND RESPONDENT DATED 10.2.2020. Exhibit P3TRUE COPY OF FORM NO.35 APPEAL TO COMMISSIONER OF INCOME TAX (APPEALS)DATED 17.1.2020.COMMISSIONER OF INCOME TAX (APPEALS)DATED 17.1.2020. Exhibit P4TRUE COPY OF THE ORDER ISSUED BY THE2ND RESPONDENT DATED 29.5.2020.2ND RESPONDENT DATED 29.5.2020. Exhibit P5TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 29.5.2020.ISSUED BY THE 2ND RESPONDENT DATED 29.5.2020. Exhibit P6TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT DATED 14.7.2021.ISSUED BY THE 2ND RESPONDENT DATED 14.7.2021. Exhibit P7TRUE COPY OF THE EMAIL COMMUNICATIONSENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED NIL.SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED NIL. Exhibit P8TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 23.7.2021.THE 2ND RESPONDENT DATED 23.7.2021. Exhibit P9TRUE COPY OF THE JUDGMENT IN WPC NO.10227 OF 2020 (C) DATED 25.5.2020.NO.10227 OF 2020 (C) DATED 25.5.2020. RESPONDENT’S EXHIBITS : NIL AJM // TRUE COPY // PA TO JUDGE