Wp(C)/11134/2020 Of Eurotech Marketing v. Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942 WP(C).No.11134 OF 2020(N) PETITIONER/S: EUROTECH MARKETINGCHANGHARAMKULAM, KOKUR P.O., EDAPPAL, MALAPPURAM-679591, REPRESENTED BY ITS MANAGING PARTNER- ABDUL RASHEED M.C. BY ADV. SRI.R.JAIKRISHNA RESPONDENT/S: OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON08.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner through the instant writ petition has assailedorder dated 03.03.2020 (Ext.P3) by the 2nd respondent wherebywhile entertaining the stay application along with the appealpreferred against the assessment order dated 30.11.2018 for theassessment year 2012-2013 the demand has been stayed subjectto the condition of deposit of 25% within a period of sixmonths. Learned counsel appearing on behalf of the petitionersubmits that the condition of payment of 25% is not justified inview of the order of the Division Bench of this Court inW.A.No.1536/2019 whereby this Court had directed that whileentertaining the application for stay, the condition of 20%, byrelying upon the circular on July 2017 cannot be imposed. 2.Issue notice before admission. Sri.ChristopherAbraham accepts notice and submits that since the application forstay has already been disposed of, the period of six months hasbeen given for deciding the appeal. But owing to the Covid 19pandemic the collection or the recovery of the Government due from the tax has become an hardest task and the government isfacing financial stringencies. 3.I have heard the learned counsel for the parties andappraised the paper book. 4.No doubt that in the instant case vide Ext.P3 stayapplication, petitioner has been directed to pay 25% of the totalamount on or before 15.03.2020 and the balance amount hasbeen stayed for a period of six months or till the disposal of theappeal whichever is earlier. The order in writ appeal cannot besaid to be in knowledge or notice of Commissioner of Income TaxAppeal/the assessing officer while exercising power under Section226(3) of the Income Tax Act. But despite that such types oforders are passed imposing a condition of payment of 20% or25%. Be that as it may. The impugned order of stay Ext.P3 ishereby set aside and the 2[nd] respondent ie., Commissioner ofIncome Tax, Kozhikode is directed to hear the appeal within aperiod of six months as prescribed subject to condition that thepetitioner would deposit 12.5% within a period of one monthfrom today. In case the petitioner complies with the order, the WP(C).No.11134 OF 2020(N) appeal shall be heard, otherwise the competent authority ie. theCommissioner shall be at liberty to pass any appropriate order inaccordance with law. The writ petition stands disposed of. nak Sd/- AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER ISSUEDBY THE 1ST RESPONDENT DATED 30.11.2018. EXHIBIT P2 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 22.5.2019. EXHIBIT P2(A) TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENTDATED 28.5.2019. EXHIBIT P2(B) TRUE COPY OF THE DELAY PETITION FILED BYTHE PETITIONER BEFORE THE 2ND RESPONDENTDATED 22.5.2019. EXHIBIT P3 TRUE COPY OF THE CONDITIONAL ORDER OF STAY PASSED BY THE 1ST RESPONDENT DATED 3.3.2020.