Wp(C)/10170/2020 Of N. Sheela v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942 WP(C).No.10170 OF 2020(U) PETITIONER/S: N. SHEELAPROPRIETRIX, SWATHI EXPORTS, MUNDAKKAL, KOLLAM-691001 BY ADVS.SRI.N.D.PREMACHANDRANSRI.D.AJITHKUMAR RESPONDENT/S: OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC GP DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON28.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Petitioner in the instant case has invoked extraordinary jurisdiction of this court under Article 226 of theConstitution of India challenging Ext.P16, whereby forentertaining the appeal preferred against the revisedassessment, petitioner has been called upon to pay 20%of the demand amount. The facts which emanate fromthe pleadings are: Petitioner is engaged in exporting ofcashew kennels and he is an assessee under the IncomeTax Act. He filed Income Tax Return before theAuthorities which was found to be under scrutinyresulting into the reassessment order Ext.P9. LearnedCounsel for the petitioner submits that the demandraised in the revised assessment is erroneous and illegal. 2.Challenging the aforementioned assessmentorder petitioner preferred appeal before the 1[st]respondent along with a stay application. 3.Learned Counsel for the petitioner submits thatpetitioner vide impugned order Ext.P16, has been called upon to pay 20% of the assessed amount for the purpose ofadjudication of the appeal on merits. It is also contendedthat the accounts of the petitioner is also attached and heis in a pitiable condition. 4.Issue notice before admission. 5. Sri.Christopher Abraham accepts notice on behalfof the income tax authorities. He submits that the incometax authorities would not be averse in deciding the interimapplication if any such prayer is made by the petitioner. 6.Having heard learned Counsel for the partiesand appraised the paper book, without commenting on themerits of the matter, I dispose of the writ petition with thefollowing directions: 1. the impugned order, in view of judgment of DivisionBench of this court in WA No.1536/19 is set aside.Bench of this court in WA No.1536/19 is set aside. 2. The matter is remitted back to the 1[st] respondentto decide the appeal on merits within a period ofthree months, without asking for 20% of thedemanded amount, after affording an opportunity ofto decide the appeal on merits within a period ofthree months, without asking for 20% of thedemanded amount, after affording an opportunity of JM/ hearing to the petitioner, including revenue bypassing a reasonable and speaking order. Sd/- AMIT RAWALJUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A COPY OF THE JUDGMENT IN WP(C)NO.21301 OF 2018 DATED 27.06.20182018 DATED 27.06.2018 EXHIBIT P2A COPY OF ORDER IN CONTEMPT CASE(CIVIL) NO.486/2019 DATED 31.05.2019 OF THIS HON'BLE COURTNO.486/2019 DATED 31.05.2019 OF THIS HON'BLE COURT EXHIBIT P3A COPY OF THE JUDGMENT IN CONTEMPT CASE (CIVIL) NO.486/2019 DATED 1.07.2019(CIVIL) NO.486/2019 DATED 1.07.2019 EXHIBIT P4A COPY OF NOTICE DATED 27.03.2019 OF THE 1ST RESPONDENT1ST RESPONDENT EXHIBIT P5A COPY OF THE REPLY DATED 24.04.2019 GIVEN BY THE PETITIONER TO EXT.P4BY THE PETITIONER TO EXT.P4 EXHIBIT P6A COPY OF THE LEDGER SHEET OF THE PETITIONER'S FATHER'S COMPANY RAJAN CASHEW COMPANYPETITIONER'S FATHER'S COMPANY RAJAN CASHEW COMPANY EXHIBIT P7A COPY OF THE LEDGER STATEMENT ANNEXED TO THE RETURN FILED BY THE PETITIONERTHE RETURN FILED BY THE PETITIONER EXHIBIT P8A COPY OF THE RETURN IN THE ANNEXURES EXHIBIT P9A COPY OF THE ASSESSMENT ORDER DATED 18.11.2019 FOR THE YEAR 2013-201418.11.2019 FOR THE YEAR 2013-2014 EXHIBIT P10A COPY OF THE NOTICE OF DEMAND DATED 18.11.2019 UNDER SECTION OF THE INCOME TAX AT, 196118.11.2019 UNDER SECTION OF THE INCOME TAX AT, 1961 EXHIBIT P4A COPY OF NOTICE DATED 27.03.2019 OF THE 1ST RESPONDENT1ST RESPONDENT EXHIBIT P5A COPY OF THE REPLY DATED 24.04.2019 GIVEN BY THE PETITIONER TO EXT.P4BY THE PETITIONER TO EXT.P4 EXHIBIT P6A COPY OF THE LEDGER SHEET OF THE PETITIONER'S FATHER'S COMPANY RAJAN CASHEW COMPANYPETITIONER'S FATHER'S COMPANY RAJAN CASHEW COMPANY EXHIBIT P7A COPY OF THE LEDGER STATEMENT ANNEXED TO THE RETURN FILED BY THE PETITIONERTHE RETURN FILED BY THE PETITIONER EXHIBIT P8A COPY OF THE RETURN IN THE ANNEXURES EXHIBIT P9A COPY OF THE ASSESSMENT ORDER DATED 18.11.2019 FOR THE YEAR 2013-201418.11.2019 FOR THE YEAR 2013-2014 EXHIBIT P10A COPY OF THE NOTICE OF DEMAND DATED 18.11.2019 UNDER SECTION OF THE INCOME TAX AT, 196118.11.2019 UNDER SECTION OF THE INCOME TAX AT, 1961 EXHIBIT P11A COPY OF THE APPEAL MEMORANDUM DATED 24.12.201924.12.2019 EXHIBIT P12A COPY OF THE LETTER DATED 16.1.2020 OF THE1ST RESPONDENT1ST RESPONDENT EXHIBIT P13A COPY OF THE LETTER DATED 28.02.2020 ADDRESSED TO THE PRINCIPAL COMMISSIONER OF THE INCOME TAXADDRESSED TO THE PRINCIPAL COMMISSIONER OF THE INCOME TAX P14: COPY OF THE LETTER DATED 23.1.2020 EXT.P15: COPY OF THE SUMMONS ISSUED UNDER SECTION 131 OF THE INCOME TAX ACT DATED 25.2.2020. EXT.P16: COPY OF THE LETTER DATED 26.2.2020 OF THE 1ST RESPONDENT. EXT.P17: COPY OF THE COMMUNICATION DATED 29.2.2020 OF THE BANK EXT.P18: COPY OF THE DECISION OF THE HON'BLE SUPREME COURT REPORTED IN (2018 12 SCC 281