Wp(C)/1316/2019 Of Martin Puthumana Thomas v. Assistant Commissioner Of Income Tax Kannur

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940 WP(C) No. 1316 of 2019 PETITIONER/S: MARTIN PUTHUMANA THOMAS, AGED 41 YEARSPROPRIETOR OF M/S.PUTHUMANA GOLD HOUSE, MAIN ROAD, PAYYANNUR-670307, BY ADVS.SRI.S.ARUN RAJSMT.C.T.SUJA RESPONDENT/S: 1ASSISTANT COMMISSIONER OF INCOME TAX KANNUR,CIRCLE-1, KANNUR RANGE, KANNUR-670006.CIRCLE-1, KANNUR RANGE, KANNUR-670006. 2THE PRINCIPAL COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE-673001.AAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE-673001. 3THE COMMISSIONER OF INCOME TAX (APPEALS),AAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE-673001. OTHER PRESENT: SC SRI CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2.. JUDGMENT The petitioner, an assessee, challenged theExt.P2 series of assessment orders in Ext.P3appeals. The appellate authority, that is, the Commissioner of Income Tax Appeals, issuedExt.P12 order of stay. In that, the appellateauthority directed the petitioner “to pay 15%of the aggregate demand as reduced by demandalready paid” in three equal instalments sothat the balance demand will stand stayeduntil the adjudication of the appeal.Assailing this interim order, the petitionerhas filed this WP(C). 2. The petitioner's counsel has brought to my notice that after filing the WP(C), the petitioner paid Rs.17,79,490/- on 26.09.2018. The break-up amount for each assessment year WP(C) No. 1316 of 2019 runs as follows: Payment made on 26.09.2018 2010-11 Rs.9,85,590/- 2011-12 Rs.3,05,390/- 2012-13 Rs.1,43,890/- 2013-14 Rs.3,44,62/- 3.Sri.Arun Raj S., the learned counsel for the petitioner, has submitted arguments on the merits. According to him, the Supreme Court,through a series of judgments, has held that anotice under Section 148 of the Income Tax Actmust have reasons set out. Once an assessee receives notice under Section 148 of theIncome Tax Act and requests the authorityconcerned for reasons, the authority, then,ought to supply the reasons for the noticeunder Section 148 of the Income Tax Act. Inthis context, Sri.Arun Raj has drawn my attention to a couple of judgments from theSupreme Court. 4.At any rate, I am concerned with the WP(C) No. 1316 of 2019 ..4.. discretionary domain of the appellate authority. The petitioner's counsel has fairlysubmitted that the appellate authority doeshave the discretion to grant a conditionalorder; nevertheless, he asserts that once theappellant demonstrates more than a prima faciecase, passing a conditional order cannot be aritual. 5.Attractiveasthelearnedcounsel'ssubmissions is, there cannot be anyproposition of law, nor can I readily findone, that if the appellant could demonstrateas he presumes for a fruitful case in appeal.Still, he does not deprive of the appellateauthority's discretion. The courts, injudicial review, are not to interfere with thediscretionary orders and passed by statutoryauthorities unless the authority has actedultra vires, are the very exercise ofjudiciary, bogus and pervasive. I there find WP(C) No. 1316 of 2019 ..5.. neither of the grounds. I express my inabilityto interfere with the Ext.P5. I, accordingly, dismiss the WP(C). If theappellate authority insists on balance ofExt.P12, it will take into account the amountsthe petitioner is said to have paid afterfiling this WP(C). As the petitioner has beenbona fide in prosecuting this WP(C), the datethe appellate authority fixed for complianceof the condition in Ext.P12 stands extended bytwo months. Sd/- DAMA SESHADRI NAIDU JUDGE Bka/16.02.2019 APPENDIX PETITIONER'S/S EXHIBITS: WP(C) No. 1316 of 2019 ..5.. neither of the grounds. I express my inabilityto interfere with the Ext.P5. I, accordingly, dismiss the WP(C). If theappellate authority insists on balance ofExt.P12, it will take into account the amountsthe petitioner is said to have paid afterfiling this WP(C). As the petitioner has beenbona fide in prosecuting this WP(C), the datethe appellate authority fixed for complianceof the condition in Ext.P12 stands extended bytwo months. Sd/- DAMA SESHADRI NAIDU JUDGE Bka/16.02.2019 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE LETTERS DATED 28.8.2016 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT SEEKING THE REASONS FOR REOPENING THE ASSESSMENT FOR THE AY'S 2010-11 TO 2014-15. ..7.. EXHIBIT P3(d)TRUE COPY OF THE STATUTORY FIRST APPEALS FILED BEFORE THE 3RD RESPONDENT BY THE PETITIONER FOR THE AY 2014-15.APPEALS FILED BEFORE THE 3RD RESPONDENT BY THE PETITIONER FOR THE AY 2014-15. EXHIBIT P4TRUE COPY OF THE ORDER DATED 22.2.2017ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT REJECTING THE STAY PETITIONFOR THE AY'S 2010-11 TO 2014-15.ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT REJECTING THE STAY PETITIONFOR THE AY'S 2010-11 TO 2014-15. EXHIBIT P5TRUE COPY OF THE CHALLANS EVIDENCING THE PAYMENTS MADE BY THE PETITIONER ON30.3.2017 AND 13.4.2017.THE PAYMENTS MADE BY THE PETITIONER ON30.3.2017 AND 13.4.2017. EXHIBIT P6TRUE COPY OF THE STAY PETITION FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2010-11.BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2010-11. EXHIBIT P6(a)TRUE COPY OF THE STAY PETITION FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2011-12.BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2011-12. EXHIBIT P6(b)TRUE COPY OF THE STAY PETITION FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2012-13.BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2012-13. EXHIBIT P6(c) TRUE COPY OF THE STAY PETITION FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2013-14.BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2013-14. EXHIBIT P6(d)TRUE COPY OF THE STAY PETITION FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2014-15.BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR THE AY-2014-15. EXHIBIT P6ATRUE COPY OF THE LETTER DATED 24.6.2017 SUBMITTED TO THE 2ND RESPONDENT BY THE PETITIONER.24.6.2017 SUBMITTED TO THE 2ND RESPONDENT BY THE PETITIONER. EXHIBIT P7TRUE COPY OF THE ORDER DATED 21.11.2017 PASSED BY THE 2ND RESPONDENT DISPOSING THE STAY PETITIONS FOR THE AY'S 2010-11 TO 2014-15.21.11.2017 PASSED BY THE 2ND RESPONDENT DISPOSING THE STAY PETITIONS FOR THE AY'S 2010-11 TO 2014-15. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 21.11.2017 PASSED BY THE 2ND RESPONDENT IN THE CASE OF AN ASSESEE SRI.P.K.VIJAYAN, SOUTH BAZAR, KANNUR.21.11.2017 PASSED BY THE 2ND RESPONDENT IN THE CASE OF AN ASSESEE SRI.P.K.VIJAYAN, SOUTH BAZAR, KANNUR. EXHIBIT P9 TRUE COPY OF THE COMPUTERIZED RECEIPT EVIDENCING THE PAYMENTS MADE ON 14.12.2017 BY THE PETITIONER FOR THE AY 2011-12 TO 2014-15.EVIDENCING THE PAYMENTS MADE ON 14.12.2017 BY THE PETITIONER FOR THE AY 2011-12 TO 2014-15. EXHIBIT P10TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT CIT (APPEALS), KOZHIKODE FOR THE AY-2010-11.BY THE PETITIONER BEFORE THE 3RD RESPONDENT CIT (APPEALS), KOZHIKODE FOR THE AY-2010-11. EXHIBIT P10(a)TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2011-12.BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2011-12. EXHIBIT P10(b)TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2012-13.BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2012-13. EXHIBIT P10TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT CIT (APPEALS), KOZHIKODE FOR THE AY-2010-11.BY THE PETITIONER BEFORE THE 3RD RESPONDENT CIT (APPEALS), KOZHIKODE FOR THE AY-2010-11. EXHIBIT P10(a)TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2011-12.BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2011-12. EXHIBIT P10(b)TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2012-13.BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2012-13. EXHIBIT P10(c)TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2013-14.BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2013-14. EXHIBIT P10(d)TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2014-15.BY THE PETITIONER BEFORE THE 3RD RESPONDENT, CIT (APPEALS), KOZHIKODE FOR THE AY-2014-15. EXHIBIT P11TRUE COPY OF THE JUDGMENT DATED 12.2.2018 PASSED IN WPC.NO.4333 OF 2018 BY THIS HONOURABLE COURT.12.2.2018 PASSED IN WPC.NO.4333 OF 2018 BY THIS HONOURABLE COURT. EXHIBIT P12TRUE COPY OF THE ORDER DATED 12.9.2018PASSED BY THE 3RD RESPONDENT ON EXHIBIT P10 SERIES STAY PETITION FOR THE AY'S 2010-11, 2011-12, 2012-13, 2013-14 AND 2014-15.PASSED BY THE 3RD RESPONDENT ON EXHIBIT P10 SERIES STAY PETITION FOR THE AY'S 2010-11, 2011-12, 2012-13, 2013-14 AND 2014-15.