Wa/340/2018 Of L.selvan v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN& THE HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939 WA.No. 340 of 2018 IN WPC. 39523/2017 AGAINST THE JUDGMENT IN WP(C) NO.39523/2017 OF THE HIGH COURT OF KERALA DATED 20.12.2017 APPELLANT/PETITIONER: L. SELVANKOCHU MAVELI VEEDUTC 48/937, KATTAMALA, THAMALAM, POOJAPURA P.O.THIRUVANANTHAPURAM. BY ADVS.SRI.B. ASHOK SHENOY SRI.K.V. GEORGE RESPONDENTS/RESPONDENTS: 1. THE INCOME TAX OFFICERWARD 1(3), THIRUVANANTHAPURAM - 695 001. 2. THE COMMISSIONER OF INCOME TAX (APPEALS)THIRUVANANTHAPURAM - 695 001. BY SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. VINOD CHANDRAN & ASHOK MENON, JJ. ----------------------------------W.A. No.340 of 2018 ----------------------------------Dated this the 8[th] day of February, 2018JUDGMENT K. Vinod Chandran, J. The petitioner is aggrieved with the judgmentof the learned Single Judge and seeks furtherreduction in the amounts directed to be paid so asto keep the recovery in abeyance. The petitioner isa Contractor and is an assessee to income tax onthe rolls of the 1[st] respondent. The petitioner'sassessment for the year 2013 was completeddetermining the total income and imposing a tax ofRs.50,39,150/-. 2. The petitioner filed an appeal before theCIT[Appeals], in which there was a stay granted ofthe recovery on the petitioner paying 75% of thetotal demand. The petitioner was before this Court W.A. No.340 of 2018 and the learned Single Judge modified the stayorder directing the petitioner to pay 30% of thedemand within one month. The petitioner is beforethis Court challenging the said judgment andrelying on Ext.P8, which mandates stay by theAssessing Officer to the extent of 20% [as modifiednow] and seeking the recovery to be kept inabeyance on payment of 20% of the total demand. 3. The learned Standing Counsel for theDepartment submits that Ext.P8 is a Circulardirecting the Assessing Officer to exercisediscretion in so far as granting stay in fit casesby permitting payment of 20% of the amounts, whenan appeal is filed before the CIT [Appeals]. Thepetitioner never approached the Assessing Officerand it is also pointed out that Clause (B)(a)specifies that in appropriate cases the AssessingOfficer will be entitled to approach the Principal Commissioner for payment of enhanced percentage ofdemand. 4. We find that the appellant had notapproached the Assessing Officer at the appropriatetime. Even if a stay was granted on payment of 20%,the Assessing Officer could have approached theadministrative superior for enhancement of theamounts to be paid, to keep the recovery inabeyance. In the present case, the learned SingleJudge had looked into that aspect and found that itwould be appropriate to keep in abeyance recoveryon payment of 30%. We also see that the assesseehad taken out two PAN cards and two separateaccounts, in which there were contract receipts.The assessee's claim is against the clubbing ofboth the accounts and the expenditure which couldbe allowed in the second account. The assessee hadtaken out two PAN numbers and disclosed his total W.A. No.340 of 2018 W.A. No.340 of 2018 income segregated in both the PAN numbers and filedreturns accordingly. The Assessing Officer foundthat the assessee had taken out two PAN numbers anddistributed his receipts in the two accounts, whichdefinitely leads to evasion of tax. We are of theopinion that there could be no further interferencemade to the recovery, but we grant the petitionerthree instalments, first instalment to be paid onor before 20.02.2018, the second instalment to bepaid on or before 20.03.2018 and the thirdinstalment to be paid on or before 20.04.2018.With the aforesaid observation, the above writappeal would stand disposed of. Sd/- K. VINOD CHANDRAN, JUDGE. sp/08/02/18 Sd/- ASHOK MENON, JUDGE. //True Copy//P.A. To Judge