Wp(C)/15061/2019 Of M/S.rainbow Realtors v. Asst. Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941WP(C).No.15061 of 2019 PETITIONER: M/S.RAINBOW REALTORS,RAINBOW SUITES, BELLARD ROAD, KANNUR 670 001 REPRESENTED BY ITS MANAGING PARTNER ETTOOL KALATHIL ABDULHAMEED. BY ADV. SRI.S.ARUN RAJ RESPONDENTS: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.15061 of 2019 -2- JUDGMENT Heard Sri. Arun Raj S., the learned counsel for thepetitioner and Sri. Christopher Abraham the learned StandingCounsel for the parties on either side. 2.Ext.P5 is challenged in the writ petition and thechallenge is confined to firstly the condition of depositing 20%and directing deposit of amount in equal four installments. 3.The operative portion of Ext.P5 reads thus: “Without going into merits of the case at this pointand considering all circumstances of the case, I direct theappellant to pay 20% of the total demand for A.Y 2011-12to 2016-17 in four equal monthly installments. Thechallan of first payment shall be furnished to theAssessing Officer by 22nd of March, 2019. it is againreiterated that the stay petitions are disposed withoutgoing into merit of the case which requires in depthexamination. The balance demand is stayed for sixmonths or disposal of appeal whichever is earlier. Anydefault on the part of the appellant to furnish any of the payment challans will automatically entail revocation ofstay granted and the Assessing Officer shall be free totake recovery action accordingly. The stay petitions for A.Y 2011-12, 2012-13, 2013-14,2014-15, 2015-16, 2016-17 of the appellant are disposed ofaccordingly.” 4.The learned counsel made a few submissions to convince this Court that adherence to bench mark depositof 20% in the case on hand is completely unwarranted andthat the petitioner has already deposited Rs.98,44,201/-(Rupees Ninety eight lakh forty four thousand two hundredand one only) and by accepting the said deposit as duecompliance with the condition imposed in Ext.P5 the appealscan be directed to be disposed of. The counsel alternativelysubmits that for paying the balance of 10% of amount thepetitioner may be granted eight more installments. 5.Sri.Christopher Abraham contends that Ext.P5reflects exercise of discretion to the extent necessary for the WP(C).No.15061 of 2019 purpose of granting stay of the assessment order underappeal before the 2[nd] respondent. The very fact that fourequal installments are granted by the 2[nd] respondent indicatesconsideration of all relevant circumstances including thehardship which was brought to the notice of the 2[nd]respondent. The case does not warrant interference againstthe discretion exercised by the 2[nd] respondent in Ext.P5. Heprays for dismissing the writ petition. He alternativelysubmits that the petitioner since has established a few bonafides by depositing Rs.98,44,201/- (Rupees Ninety eight lakhforty four thousand two hundred and one only) the four equalinstallments granted in Ext.P5 can be extended reasonably bythis Court. 6.After perusing the Ext.P5, I am satisfied that thecondition imposed cannot be treated as arbitrary orunreasonably in the facts and circumstances of the case. The WP(C).No.15061 of 2019 2[nd] respondent has granted four equal installments. In all thecircumstances granting four equal installments amounts togranting sufficient time for complying with the conditionimposed by the appellate authority. But keeping in mind thehardship now pleaded by the counsel appearing for thepetitioner as an exceptional case and the exercise of thejurisdiction of the this Court under Article 226 of theConstitution of India, the installments are extended from fourto six installments. Thereby the modified order reads thus: 6.After perusing the Ext.P5, I am satisfied that thecondition imposed cannot be treated as arbitrary orunreasonably in the facts and circumstances of the case. The WP(C).No.15061 of 2019 2[nd] respondent has granted four equal installments. In all thecircumstances granting four equal installments amounts togranting sufficient time for complying with the conditionimposed by the appellate authority. But keeping in mind thehardship now pleaded by the counsel appearing for thepetitioner as an exceptional case and the exercise of thejurisdiction of the this Court under Article 226 of theConstitution of India, the installments are extended from fourto six installments. Thereby the modified order reads thus: “Without going into merits of case at this point andconsidering all circumstances directs petitioner to pay 20% ofthe total demand for A.Y 2011-12 to 2016-17 in six equalmonthly installments. The challan of next payment shall befurnished to the Assessing Officer by 15.07.2019. In otherwords, the instalments are completed on or before 11.9.2019.It is again reiterated that the stay petitions are disposed WP(C).No.15061 of 2019 without going into merits of the case which requires in depthexamination. The balance demand is stayed for six months ordisposal of appeal whichever is earlier. Any default on thepart of the appellant to furnish any of the payment challanswill automatically entail revocation of stay granted and theAssessing Officer shall be free to take recovery actionaccordingly. The stay petitions for A.Y 2011-12, 2012-13, 2013-14,2014-15, 2015-16, 2016-17 of the appellant are disposed ofaccordingly”. Sd/- S.V.BHATTIJUDGE WP(C).No.15061 of 2019 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2011-12DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2011-12 EXHIBIT P1 ATRUE COPY OF THE ASSESSMENT ORDER DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2012-13DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2012-13 EXHIBIT P1 BTRUE COPY OF THE ASSESSMENT ORDER DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2013-14DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2013-14 EXHIBIT P1 CTRUE COPY OF THE ASSESSMENT ORDER DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2014-15DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2014-15 EXHIBIT P1 DTRUE COPY OF THE ASSESSMENT ORDER DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2015-16DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2015-16 EXHIBIT P1 ETRUE COPY OF THE ASSESSMENT ORDER DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2016-17DATED 31-12-2016 PASSED BY THE 1ST RESPONDENT FOR THE AY 2016-17 EXHIBIT P2TRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2011-12ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2011-12 EXHIBIT P2 ATRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2012-13ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2012-13 EXHIBIT P2 BTRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2013-14ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2013-14 EXHIBIT P2 CTRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED ALONG WITH THE GROUND OF APPEAL FILED WP(C).No.15061 of 2019 BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2014-15PETITIONER FOR AY 2014-15 EXHIBIT P2 DTRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2015-16ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2015-16 EXHIBIT P2 BTRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2013-14ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2013-14 EXHIBIT P2 CTRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED ALONG WITH THE GROUND OF APPEAL FILED WP(C).No.15061 of 2019 BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2014-15PETITIONER FOR AY 2014-15 EXHIBIT P2 DTRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2015-16ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2015-16 EXHIBIT P2 ETRUE COPY OF THE APPEAL MEMORANDUM ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2016-17ALONG WITH THE GROUND OF APPEAL FILED BEFORE THE 2ND RESPONDENT BY THE PETITIONER FOR AY 2016-17 EXHIBIT P3TRUE COPY OF STAY PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2011-12BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2011-12 EXHIBIT P3 ATRUE COPY OF STAY PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2012-13BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2012-13 EXHIBIT P3 BTRUE COPY OF STAY PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2013-14BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2013-14 EXHIBIT P3 CTRUE COPY OF STAY PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2014-15BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2014-15 EXHIBIT P3 DTRUE COPY OF STAY PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2015-16BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2015-16 EXHIBIT P3 ETRUE COPY OF STAY PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2016-17BY THE PETITIONER TO THE 2ND RESPONDENT FOR THE AY 2016-17 EXHIBIT P4TRUE COPY OF THE JUDGMENT DATED 24-1-2019 IN WP(C) NO. 2193 OF 2019 PASSED BY THIS HONOURABLE COURT.2019 IN WP(C) NO. 2193 OF 2019 PASSED BY THIS HONOURABLE COURT. EXHIBIT P5TRUE COPY OF THE COMMON ORDER DATED 11-3-2019 PASSED BY THE 2ND RESPONDENTON EXHIBIT P-3,P-3(A) , P-3(B), P-3(C), P-3(D) AND P-3(E) STAY PETITIONS11-3-2019 PASSED BY THE 2ND RESPONDENTON EXHIBIT P-3,P-3(A) , P-3(B), P-3(C), P-3(D) AND P-3(E) STAY PETITIONS WP(C).No.15061 of 2019 EXHIBIT P6TRUE COPY OF THE LETTER DATED 30-04-2019 SUBMITTED TO THE JOINT COMMISSIONER OF INCOME TAX BY THE PETITIONER