Wp(C)/13364/2017 Of Antony Sunny v. The Joint Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939 WP(C).No. 13364 of 2017 (U) ---------------------------- PETITIONER:-----------ANTONY SUNNY, VELLARA HOUSE, CONVENT ROAD,VADAKKEKAD, NHAMANGHAT P.O., THRISSUR 679 563. BY ADVS.SRI.K.SRIKUMAR (SR.) SRI.K.MANOJ CHANDRAN SRI.P.R.AJITHKUMAR SRI.P.V.THOMAS SRI.S.A.MANSOOR (PATTANAM) RESPONDENTS:------------ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13364 of 2017 (U) APPENDIX PETITIONER'S EXHIBITS P1TRUE COPY OF THE PROPOSAL NOTICE DATED 01.11.2016 ISSUED U/S.271D OF THE INCOME TAX ACTU/S.271D OF THE INCOME TAX ACT P1ATRUE COPY OF THE PROPOSAL NOTICE DATED 01.11.2016 ISSUED U/S.271E OF THE INCOME TAX ACTU/S.271E OF THE INCOME TAX ACT P2:TRUE COPY OF THE PENALTY ORDER DATED 16.12.2016 P3:TRUE COPY OF THE PENALTY ORDER DATED 16.12.2016 PASSED U/S.271EOF THE INCOME TAX ACTOF THE INCOME TAX ACT P4:TRUE COPY OF THE APPEAL DATED 27.02.2017 P5:TRUE COPY OF THE OFFICE MEMORANDUM F.NO.404/72/ITCC DATED 29.02.201629.02.2016 P6:TRUE COPY OF THE STAY PETITION DATED 01.03.2017 P7:31.03.201731.03.2017 TRUE COPY OF THE LETTER NO.JCIT/R.1/TCR/STAY/2016-17 DATED //TRUE COPY// P.A. TO JUDGE K. VINOD CHANDRAN, J. ------------------------------------------ W.P.(C) No. 13364 of 2017 (U) ------------------------------------------Dated: 12[th] April, 2017 J U D G M E N T The petitioner is aggrieved with the order passedat Ext.P7 by the Assessing Officer. 2.Ext.P7 order has been rejected on the ground that 15% of the disputed demand has to be paid so as toenable consideration of the stay petition. The staypetition was filed by the petitioner, as per Ext.P5Circular of the Central Board of Direct Taxes (CBDT).The petitioner also has a contention that the petitionerhad moved an appeal and a stay petitionsimultaneously. The Appellate Authority directed thepetitioner to approach the Assessing Officer, underExt.P5, and hence the stay petition was withdrawn. Thepetitioner had moved the Assessing Officer, who had directed deposit of 15% of the demand to consider thestay petition. 3.The direction of the Assessing Officer isagainst Ext.P5 Circular. The intention of the CBDT wasto streamline the process of grant of stay andstandardize the quantum of lump sum payment pendingappeal. The measure was designed also to avoidhardship to tax payers from whom high proportion ofthe disputed amounts are demanded, pending appeal.In fact, the direction in the Circular was to considerstay of the outstanding demand on payment of 15% ofthe disputed demand, till the first appeal is considered.The intention is for the Assessing Officer to look intothe nature of the demand and grant a stay on paymentof 15% or otherwise reduce the condition; unless thecase comes under Clause 4(B) of the Circular. If 15% isdirected to be paid, then there is no reason why the The direction of the Assessing Officer is -3- Assessing Officer should then consider the applicationfor stay, since, as per the Circular, there should be astay till the disposal of the appeal. 4.In any event, since an appeal has been filedand the Assessing Officer has been acting against thespecific provisions of the Circular, this Court is of theopinion that the Appellate Authority itself shouldconsider the stay application. Ext.P7 would stand setaside. The petitioner shall move a fresh petition forstay before the Appellate Authority and the AppellateAuthority shall consider the same. The petitioner shallmove the stay application within three weeks fromtoday. Till orders are passed in that application, thereshall be an interim stay of the demand. The writ petition is disposed of. Sd/-K.VINOD CHANDRAN, JUDGE jjj 12/4/17