Wp(C)/16473/2020 Of Tulsi Developers India (P) Ltd v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942WP(C).No.16473 OF 2020 PETITIONER/S: TULSI DEVELOPERS INDIA (P) LTDVIII/522B, 139, MAVELIPURAM, SEAPORT-AIR PORT ROAD, KAKKANAD, ERNAKULAM-683020, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.G.THULASIDAS. BY ADVS.SRI.AJI V.DEVSRI.ALAN PRIYADARSHI DEV RESPONDENT/S: 1THE ASSISTANT COMMISSIONER OF INCOME TAXCENTRAL CIRCLE, AAYAKAR BHAVAN, NEAR KARBALA JUNCTION, RAILWAY STATION ROAD, KOLLAM-691001. 2THE COMMISSIONER OF INCOME TAX (APPEALS)-I,G-51, PARAPILLY LANE, MANORAMA JUNCTION, GIRI NAGAR, PANAMPILLY NAGAR, KOCHI, KERALA-682036. 3THE COMMISSIONER OF INCOME TAX (APPEALS)-III,POORNIA BUILDING, MANORAMA JUNCTION, PANAMPILLY NAGAR, KOCHI-682036. 4THE INCOME TAX OFFICER,CORPORATE WARD-II (4), CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, KACHERIPADY, KOCHI-682018. OTHER PRESENT: SC: JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON12.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P6 stayorder passed by the first appellate authority in a stay application filed alongwith an appeal against the order of assessment under the Income Tax Act. Inthe writ petition, it is the specific case of the petitioner that while theappellate authority was directed to consider the stay application preferred bythe petitioner on merits, by Ext.P5 judgment of this Court, the appellateauthority while passing Ext.P6 stay order relied on certain office memorandaissued by the CBDT to insist on the petitioner paying 20% of the disputeddemand as a condition for grant of stay, pending disposal the appeal. It is thecontention of the learned counsel for the petitioner that while the appellateauthority ought not to have gone by the directions in the office memorandumof the CBDT, while considering a stay application pursuant to the direction ofthis Court, it is a further fact that before passing the said order, thepetitioner was also not given an opportunity of hearing. 2.I have heard the learned counsel appearing for the petitioner andalso the learned Standing Counsel appearing for the respondents. On a consideration of the facts and circumstances of the case as alsothe submissions made across the Bar, I find force in the contention of thelearned counsel for the petitioner that while passing Ext.P6 stay order, thefirst appellate authority was virtually acting under dictation, in that the first 3 appellate authority felt compelled by the CBDT instructions relied upon inhis order, to insist on a payment of 20% of the disputed demand, pendingdisposal of the appeal. In my view, when there was a specific direction inExt.P5 judgment of this Court to the appellate authority to consider the stayapplication on merits, the appellate authority ought to have considered thestay application as directed by this Court, and without placing any relianceon the instructions issued by the CBDT directing the application to bedecided in a particular way. Even otherwise, it is obligatory on statutoryauthorities who are entrusted with quasi judicial powers under a statute, toadjudicate on issues without being bogged down by executive instructionsthat direct them to exercise their discretion in any particular manner. As acreature of the statute, on whom the discretionary power is conferred, theauthority cannot abdicate his responsibilities by acting on the dictates ofanother who has no role to play under the statutory scheme. I also find forcein the contention of the learned counsel for the petitioner that the appellateauthority did not hear him while passing Ext.P6 stay order, and that this wasa further act in contravention of the directions of this Court in Ext.P5judgment. In the result, I quash Ext.P6 order and direct the first appellateauthority to pass fresh orders in the matter after hearing the petitioner,either through a physical hearing or through video conference, keeping inmind the observations made in this judgment. The 2[nd] respondent shallaccordingly pass fresh orders as directed within a period of four monthsfrom the date of receipt of a copy of this judgment. Needless to say, till suchtime as orders are passed by the 2[nd] respondent as directed, and the ordercommunicated to the petitioner, recovery steps for recovery of amounts 4 confirmed against the petitioner by the assessment orders impugned in theappeal shall be kept in abeyance. The petitioner shall produce a copy of thewrit petition together with a copy of this judgment, before 2[nd] respondent, forfurther action. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE SJ 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER PASSED BYTHE 1ST RESPONDENT FOR THE YEAR 2017-18 DATED 24.12.2019. EXHIBIT P2TRUE COPY OF THE RECTIFICATION PETITION FILED DATED 24.1.2020.FILED DATED 24.1.2020. EXHIBIT P3TRUE COPY OF THE APPEAL FILED AGAINST EXT.P1 FOR THE YEAR 2017-18 DATED 17.1.2020.EXT.P1 FOR THE YEAR 2017-18 DATED 17.1.2020. EXHIBIT P4TRUE COPY OF THE STAY PETITION DATED 17.1.2020.17.1.2020. EXHIBIT P5TRUE COPY OF JUDGMENT DATED 6.2.2020 OF THIS HON'BLE COURT IN W.P.(C) 3222 OF 2020.THIS HON'BLE COURT IN W.P.(C) 3222 OF 2020. EXHIBIT P6TRUE COPY OF THE STAY ORDER PASSED BY THE 2ND RESPONDENT FOR THE YEAR 2017-18 DATED 20.3.2020.2ND RESPONDENT FOR THE YEAR 2017-18 DATED 20.3.2020. EXHIBIT P7TRUE COPY OF THE ASSESSMENT ORDER PASSED BYTHE 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 14.12.2018.THE 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 14.12.2018. EXHIBIT P8TRUE COPY OF THE STAY ORDER PASSED BY THE 3RD RESPONDENT DATED 25.4.2019.3RD RESPONDENT DATED 25.4.2019. EXHIBIT P9TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN M/S.MOTHER HOSPITAL PVT. LTD. VS. COMMISSIONER OF INCOME TAX DATED 8.3.2017.SUPREME COURT IN M/S.MOTHER HOSPITAL PVT. LTD. VS. COMMISSIONER OF INCOME TAX DATED 8.3.2017.