Wp(C)/16670/2014 Of Mullakkodi Co-Operative Rural Bank Ltd v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936 WP(C).No. 16670 of 2014 (G) ---------------------------------------- PETITIONER: ------------------- MULLAKKODI CO-OPERATIVE RURAL BANK LIMITED, KOLACHERY MUKKU, KOLACHERY P.O, KANNUR- 670 601, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.O.D.SIVADAS. RESPONDENTS: ----------------------- 1. THE INCOME TAX OFFICER, WARD NO. 4, KANNUR, KANNUR DISTRICT - 670 001. KANNUR DISTRICT - 670 001. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), MANANCHIRA, KOZHIKODE - 673 001. BY SRI.JOSE JOSEPH, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C).NO.16670/2014 - G: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08.1ST RESPONDENT FOR THE YEAR 2007-08. EXHIBIT P2: TRUE COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2008-09.RESPONDENT FOR THE YEAR 2008-09. EXHIBIT P3: TRUE COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-011.RESPONDENT FOR THE YEAR 2010-011. EXHIBIT P4: TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER AGAINST EXT.P1 DATED 3/4/2013.AGAINST EXT.P1 DATED 3/4/2013. EXHIBIT P5: TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER AGAINST EXT.P2 DATED 3/4/2013.AGAINST EXT.P2 DATED 3/4/2013. EXHIBIT P6: TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER AGAINST EXT.P3 DATED 3/4/2013.AGAINST EXT.P3 DATED 3/4/2013. EXHIBIT P7: TRUE COPY OF THE ORDER DT. 28-02-2014 OF THE 2ND RESPONDENT. EXHIBIT P8: TRUE COPY OF THE PETITION DATED 1-3-2014 SUBMITTED BY THE PETITIONER.PETITIONER. EXHIBIT P9: TRUE COPY OF THE ORDER DATED 26-03-2014 ISSUED BY THE 1ST RESPONDENT.RESPONDENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. K. VINOD CHANDRAN, J. ===================== W.P.(C) No. 16670 of 2014======================Dated this the 1[st] day of July 2014 J U D G M E N T The petitioner is aggrieved by the order passed underSection 220(6) of the Income Tax Act, 1961, by theAssessing Officer, which is evidenced by Ext.P9. Ext.P9directs payment of 50% of the demand. The merits of thesubject matter of the appeal need not be dealt with at thispoint of time. What is relevant is that, the petitioner hadfiled the appeals for the years 2007-08, 2008-09 and2010-11, evidenced by Exts.P4, P5 and P6. Stay applicationswere moved in the appeals. However by Ext.P7 order, theAppellate Authority directed the petitioner to approach theAssessing Officer under Section 220(6) of the Act. 2. Definitely, the assessee could in the circumstanceof even an order being passed by the Appellate Authority,approach the Assessing Officer under Section 220(6) of theAct, at his option. The difficulties of the assessee to make W.P.(C) No. 16670 of 2014 the payments immediately could be raised and such powerof the Assessing Authority can also be invoked. That is thepower conferred on the Assessing Officer to exercise hisdiscretion even when an appeal is said to be pending beforethe Appellate Authority. But, however, when a stayapplication has been moved before the Appellate Authority,the Appellate Authority cannot abdicate its powers anddirect the assessee/appellant to approach the AssessingOfficer under Section 220(6) of the Act. In suchcircumstance, though the petitioner places two decisionsdilating upon the powers under Section 220(6) of the Act,that need not be considered at this stage. 3. What is evident is that, the Appellate Authority was W.P.(C) No. 16670 of 2014 the payments immediately could be raised and such powerof the Assessing Authority can also be invoked. That is thepower conferred on the Assessing Officer to exercise hisdiscretion even when an appeal is said to be pending beforethe Appellate Authority. But, however, when a stayapplication has been moved before the Appellate Authority,the Appellate Authority cannot abdicate its powers anddirect the assessee/appellant to approach the AssessingOfficer under Section 220(6) of the Act. In suchcircumstance, though the petitioner places two decisionsdilating upon the powers under Section 220(6) of the Act,that need not be considered at this stage. 3. What is evident is that, the Appellate Authority was moved with a stay application, which necessarily theAppellate Authority has to consider on a prima facieconsideration of the merits of the matter. In suchcircumstance, there shall be a direction to the AppellateAuthority to consider such stay applications for the respective years, after affording an opportunity of hearingto the petitioner herein. The Appellate Authority shall soconsider and pass orders within a period of two monthsfrom today, Exts.P7 and P9 shall stand set aside to facilitatesuch consideration by the Appellate Authority. The demandand recovery shall therefore be governed by the orderspassed in the stay applications by the Appellate Authority.The Writ Petition is disposed of. Sd/- K. VINOD CHANDRAN,JUDGE SB // True Copy // P.A To Judge.