Wp(C)/10672/2019 Of Palode Co-Operative Agricultural Development Bank Ltd v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941WP(C).No. 10672 of 2019 PETITIONER/S: M/S.PALODE CO-OPERATIVE AGRICULTURAL DEVELOPMENT BANK LTDNO.T.862, KUSAVOOR, KARIMANCODE PALODE, THIRUVANANTHAPURAM-695562., REPRESENTED BY ITS SECRETARY. SHRI.R.VAIJUKUMAR.NO.T.862, KUSAVOOR, KARIMANCODE PALODE, THIRUVANANTHAPURAM-695562., REPRESENTED BY ITS SECRETARY. SHRI.R.VAIJUKUMAR. BY ADVS.SRI.T.M.SREEDHARAN (SR.)SMT.DIVYA RAVINDRANSMT.NISHA JOHNSRI.V.P.NARAYANAN RESPONDENT/S: 1THE ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE 2(1), AYAKKAR BHAWAN, KOWDIAR P.O, THIRUVANANTHAPURAM-695005.CIRCLE 2(1), AYAKKAR BHAWAN, KOWDIAR P.O, THIRUVANANTHAPURAM-695005. 2THE COMMISSIONER OF INCOME TAX(APPEALS)AAYAKAR BHAWAN, KOWDIAR, THIRUVANANTHAPURAM-695005.AAYAKAR BHAWAN, KOWDIAR, THIRUVANANTHAPURAM-695005. SC SRI. CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Heard Smt.Nisha John, the learned counsel for the petitioner andSri.Christopher Abraham, the learned Standing Counsel for therespondents. 2. The petitioner challenges Ext.P6 stay order particularly the condition imposed by the 2[nd] respondent while granting stay of assessment orderdated 28.12.2018 for the assessment year 2016-2017. According to thepetitioner the grounds raised by the petitioner ought to have been takennote of and these grounds demonstrably show that the petitioner hasmade out prima facie case and firstly stay ought to have been grantedwithout the condition, secondly the condition to deposit 20% is withoutbasis, and finally the time granted to comply with the condition is tooshort to pay the 20% of tax demanded. 3. Sri.Christopher Abraham, the learned Standing Counselcontends that the first two grounds raised by the petitioner do notcome, in the facts and circumstances of this case within the scope ofjudicial review of this Court and the court can consider grantingreasonable instalments to comply with the condition of depositing 20% ofthe tax demanded through assessment order dated 28.12.2018 instead of setting aside the impugned order. 4. This Court prima facie is of the view that the discretion bothwhile granting the stay order and imposing the condition, does notwarrant interference in the facts of this case, however, to provide littlebreathing space to petitioner firstly to comply with the condition andeffectively contest the appeal the petitioner is granted three equalmonthly instalments for complying with the condition imposed in theimpugned order. The first payable instalment falls on 17[th] of April, 2019,second instalment on 17.05.2019 and third instalment is on 17.06.2019.The default of any one of the installments the protection granted by thisCourt is vacated and it is for the Authorities to recover the outstandingtax and interest in accordance with law. In the interregnum subject tocomplying with the installments coercive steps are stayed. Sd/- S.V.BHATTI JUDGE Ac W.P.(C)No.10672/19 4 PETITIONER'S/S EXHIBITS: APPENDIX EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 28.12.2018 PASSED BY THE 1ST RESPONDENT FOR AY-2016-17.28.12.2018 PASSED BY THE 1ST RESPONDENT FOR AY-2016-17. EXHIBIT P2TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 28.01.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.DATED 28.01.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3TRUE COPY OF THE STAY PETITION DATED 25.01.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.25.01.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4TRUE COPY OF APPLICATION DATED 25.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1STRESPONDENT U.S 220(6).SUBMITTED BY THE PETITIONER BEFORE THE 1STRESPONDENT U.S 220(6). PETITIONER'S/S EXHIBITS: APPENDIX EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 28.12.2018 PASSED BY THE 1ST RESPONDENT FOR AY-2016-17.28.12.2018 PASSED BY THE 1ST RESPONDENT FOR AY-2016-17. EXHIBIT P2TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 28.01.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.DATED 28.01.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3TRUE COPY OF THE STAY PETITION DATED 25.01.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.25.01.2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4TRUE COPY OF APPLICATION DATED 25.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1STRESPONDENT U.S 220(6).SUBMITTED BY THE PETITIONER BEFORE THE 1STRESPONDENT U.S 220(6). EXHIBIT P5TRUE COPY OF THE JUDGMENT DATED 1.03.2019 IN WPC NO.6252 OF 2019 OF THIS HON'BLE COURT.IN WPC NO.6252 OF 2019 OF THIS HON'BLE COURT. EXHIBIT P6TRUE COPY OF THE STAY ORDER DATED 25.03.2019 PASSED BY THE 2ND RESPONDENT.25.03.2019 PASSED BY THE 2ND RESPONDENT. RESPONDENT'S/S EXHIBITS: NIL //TRUE COPY// Sd/- PA TO JUDGE