Wp(C)/12969/2017 Of M.v.viswanathan v. The Principal Commissioner Of Income Tax-Ii

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939 WP(C).No. 12969 of 2017 (U) ---------------------------- PETITIONER(S):------------- M V VISWANATHAN, AGED 56 YEARS, SON OF VELAYUDHAN PILLAI,MECHERIL HOUSE, EDAYAR, BINANIPURAM P O ALUVA 683 502 BY ADVS.SRI.B.ASHOK SHENOY SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH SRI.RIYAL DEVASSY RESPONDENTS:-------------- 1.THE PRINCIPAL COMMISSIONER OF INCOME TAX-II CENTRAL REVENUE BUILDINGS, IS PRESS ROAD, KOCHI 682 018 2.THE COMMISSIONER OF INCOME TAX (APPEALS ) II POORNIMABUILDINGS, PANAMPILLY NAGAR, KOCHI 682 036 3.THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE IKAP COMPLEX, RAILWAY STATION ROAD ALUVA 683 101 R BY SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENTSRI CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON11-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.12969/2017 (U) :2: APPENDIX EXT.P1: TRUE COPY OF THE ASSESSMENT ORDER DT 9.3.2016 PASSED BY THE 3RDRESPONDENT IN RESPECT OF PETITIONER FOR THE ASSESSMENT YEAR 2013-14ALONGWITH INCOME TAX COMPUTATION FORM ATTACHED THEREWITH EXT.P2: TRUE COPY OF THE NOTICE OF DEMAND DATED 09.03.2016 ISSUED BYTHE 3RD REPONDENT TO PETITIONER UNDER PAN - EXT.P3: TRUE COPY OF THE APPEAL DT 15.6.2016 FILED BY THE PETITIONERBEFORE THE 2ND RESPONDENT EXT.P4: TRUE COPY OF THE APPLICATION FOR STAY DT 2.6.2016 FILED BYPETITIONER BEFORE 2ND RESPONDENT EXT.P5: TRUE COPY OF PRESS RELEASE DT 03.03.2016 WITH THE OFFICEMEMORANDUM F NO.404/72/93-ITCC DT 29.2.2016 ISSUED BY THE CENTRAL BOARDOF DIRECT TAXES. EXT.P6: TRUE OCY OF THE NOTICE NO. CIT 2/CHN/STAY/2016-17 DATED25.7.2016 ISSUED BY THE 1ST RESPONDENT TO PETITIONER EXT.P7: TRUE COPY OF LETTER NO.AC/CIR/ALV/AASPV 5072 b/2016-17 DATED31.03.2017 ISSUED TO PETITIONER BY 3RD RESPONDENT RESPONDENTS EXHIBITS: NIL TRUE COPY P.A TO JUDGE jma K. VINOD CHANDRAN, J - - - - - - - - - - - - - - - - - - - -- - - -W.P(C) No. 12969 of 2017 U- - - - - - - - - - - - - -- - - -- - - -- - - - -- Dated this the 11[th] day of April, 2017 J U D G M E N T The petitioner is aggrieved with Ext.P7 order passedby the Assessing officer in an application filed for stay ofrecovery pending appeal. The total demand would come toRs.1,04,86,230/-. The assessee was directed to pay a sum ofRs.75,50,086/-. The assessee hence was before the AssessingOfficer for reduction of the amounts demanded for reason of it being more than 75% of the total demand made. The assesseealso claims the benefit of the circular of CBDT which directedthe Assessing Officer, at his discretion to grant a stay onpayment of 15% of the total demand. 2. Herein it is seen from the order, that the Principal CIT, Kochi, was approached for instructions, within WP(C) No.12969/2017 the terms of the guidelines. The Assessing Officer had made abland statement in Ext.P7 order, that the nature of additionresulting in the disputed demand, warrants payment of lumpsum amount, higher than 15%. However, nothing is disclosedin the order as to why the Assessing Officer came to such aconclusion. In such circumstances, this Court is of the opinionthat the assessee can be granted a stay of recovery on paymentof 15% of the amounts granted. 3.The learned Counsel for the petitioner submitsthat there is a claim for refund of Rs.14,52,499/- which wouldcome to 15% and the same has already been given credit bythe Assessing Officer as per Ext.P7. It cannot be said that thepetitioner was given credit of the refund. Pendingconsideration of the refund application, the Assessing Officer WP(C) No.12969/2017 merely reduced that amount from the condition imposed of 3.The learned Counsel for the petitioner submitsthat there is a claim for refund of Rs.14,52,499/- which wouldcome to 15% and the same has already been given credit bythe Assessing Officer as per Ext.P7. It cannot be said that thepetitioner was given credit of the refund. Pendingconsideration of the refund application, the Assessing Officer WP(C) No.12969/2017 merely reduced that amount from the condition imposed of payment. In such circumstances, the petitioner would have topay 15% of the demand within a period of one month fromtoday, upon which there shall be a stay of recovery till theappeal is disposed of. The refund application shall beconsidered independently and adjustment made at thediscretion of the Officer. Writ petition is partly allowed. jma //true copy/ Sd/- (K. VINOD CHANDRAN, JUDGE) P.A to Judge