Wp(C)/20249/2020 Of Alukkas Jewellery Kannur v. Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942 WP(C).No.20249 OF 2020(E) PETITIONER/S: M/s ALUKKAS JEWELLERY KANNURADMN. OFFICE, ALUKKAS COMPLEX, RAMOHAM ROAD, KOZHIKODE- 673 004, REPRESENTED BY ITS MANAGING PARTNER A.V. FRANCIS. BY ADVS.SRI.S.ARUN RAJSMT.C.T.SUJA RESPONDENT/S: 1DEPUTY COMMISSIONER OF INCOME TAXCIRCLE-1, KANNUR, O/O. ADDL.COMMISSIONER OF INCOME TAX, KONNOTHUMCHAL, CHOVVA P.O, KANNUR-670 006 2COMMISSIONER OF INCOME TAX (APPEALS)AAYAKAR BHAVAN, MANANCHIRA, CALICUT-673 001 OTHER PRESENT: SC: CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON29.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P10 stayorder passed against him under the Income Tax Act, in an appeal preferred byhim against an order of assessment. In the writ petition, it is the case of thepetitioner that while the appeal and stay petition were pending considerationbefore the Appellate Authority namely the 2nd respondent, the 2nd respondenthad issued Ext.P8 notice calling upon the petitioner to submit the writtensubmission for the purposes of deciding the appeal itself. While the petitionerhad complied with the said notice, and had submitted the written submissionfor the purposes of hearing the appeal, he was served with Ext.P10 order inthe stay application asking him to deposit some amounts, pendingconsideration of the appeal. In the writ petition, the petitioner contends that inas much the appeal itself was posted for hearing and the written submissionsin connection with the hearing of the appeal have already been furnished, theappeal itself can be disposed and the petitioner need not be put to thedifficulty of having to deposit amounts pending disposal of the appeal. 2.I have heard the learned counsel appearing for the petitioner and alsothe 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 am of the view that in as much asExt.P8 notice was issued to the petitioner calling him to appear for the finalhearing of the appeal itself, there is no requirement at this stage to insist on a 3 pre-deposit as a condition for grant of stay of recovery, pending disposal of theappeal. Accordingly. I quash Exts.P5 and P10 orders passed in connection withthe deposit of amounts pending disposal of the appeal and direct the AppellateAuthority namely, the 2nd respondent, to consider and pass orders on Ext. P2appeal within an outer time limit of six month from the date of receipt of acopy of this judgment, after hearing the petitioner. The petitioner shallproduce a copy of the writ petition together with a copy of this judgment,before the 2nd respondent, for further action. I also make it clear that thepending disposal of the appeal, the recovery steps for recovery of amountsconfirmed against the petitioner by the order impugned in the appeal shall bekept in abeyance. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE 4 APPENDIX PETITIONER'S/S EXHIBITS:EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 30.12.2019 PASSED BY THE 1ST RESPONDENT ANDTHE DEMAND NOTICE ISSUED FOR THE AY 217-18EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 30.12.2019 PASSED BY THE 1ST RESPONDENT ANDTHE DEMAND NOTICE ISSUED FOR THE AY 217-18 EXHIBIT P2TRUE COPY OF THE APPEAL MEMORANDUM DATED 21.1.2020 FILED BY THE PETITIONER FIRM BEFORE THE 2ND RESPONDENT FOR THE AY 2017-1821.1.2020 FILED BY THE PETITIONER FIRM BEFORE THE 2ND RESPONDENT FOR THE AY 2017-18 EXHIBIT P3TRUE COPY OF THE STAY PETITION FILED BY THEPETITIONER FIRM BEFORE THE ASSESSING OFFICER, 1ST RESPONDENT FOR THE AY 2017-18PETITIONER FIRM BEFORE THE ASSESSING OFFICER, 1ST RESPONDENT FOR THE AY 2017-18 Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE 4 APPENDIX PETITIONER'S/S EXHIBITS:EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 30.12.2019 PASSED BY THE 1ST RESPONDENT ANDTHE DEMAND NOTICE ISSUED FOR THE AY 217-18EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 30.12.2019 PASSED BY THE 1ST RESPONDENT ANDTHE DEMAND NOTICE ISSUED FOR THE AY 217-18 EXHIBIT P2TRUE COPY OF THE APPEAL MEMORANDUM DATED 21.1.2020 FILED BY THE PETITIONER FIRM BEFORE THE 2ND RESPONDENT FOR THE AY 2017-1821.1.2020 FILED BY THE PETITIONER FIRM BEFORE THE 2ND RESPONDENT FOR THE AY 2017-18 EXHIBIT P3TRUE COPY OF THE STAY PETITION FILED BY THEPETITIONER FIRM BEFORE THE ASSESSING OFFICER, 1ST RESPONDENT FOR THE AY 2017-18PETITIONER FIRM BEFORE THE ASSESSING OFFICER, 1ST RESPONDENT FOR THE AY 2017-18 EXHIBIT P4TRUE COPY OF THE JUDGMENT DATED 14.2.2020 IN W.P(C) NO.4318 OF 2020 PASSED BY THIS HONOURABLE COURTIN W.P(C) NO.4318 OF 2020 PASSED BY THIS HONOURABLE COURT EXHIBIT P5TRUE COPY OF THE ORDER DATED 4.3.2020 PASSED BY THE 1ST RESPONDENT ON EXHIBIT P3 APPLICATIONPASSED BY THE 1ST RESPONDENT ON EXHIBIT P3 APPLICATION EXHIBIT P6TRUE COPY OF THE STAY APPLICATION ALONG WITH LETTER DATED 9.3.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE AY 2017-18WITH LETTER DATED 9.3.2020 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE AY 2017-18 EXHIBIT P7TRUE COPY OF THE NOTICE DATED 19.2.2020 ISSUED BY THE 2ND RESPONDENT ON THE STAY APPLICATIONISSUED BY THE 2ND RESPONDENT ON THE STAY APPLICATION EXHIBIT P7ATRUE COPY OF THE WRITTEN SUBMISSION DATED 24.6.2020 E-FILED BY THE PETITIONER ON STAYPETITION BEFORE THE 2ND RESPONDENT FOR THE AY 2017-1824.6.2020 E-FILED BY THE PETITIONER ON STAYPETITION BEFORE THE 2ND RESPONDENT FOR THE AY 2017-18 EXHIBIT P8TRUE COPY OF THE NOTICE DATED 17.8.2020 ISSUED BY THE 2ND RESPONDENT ASKING FOR E-FILING THE WRITTEN SUBMISSION FOR DISPOSAL OF EXHIBIT P2 APPEALISSUED BY THE 2ND RESPONDENT ASKING FOR E-FILING THE WRITTEN SUBMISSION FOR DISPOSAL OF EXHIBIT P2 APPEAL EXHIBIT P9TRUE COPY OF THE WRITTEN SUBMISSIONS DATED 26.08.2020 IN THE APPEAL MEMORANDDUM FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT26.08.2020 IN THE APPEAL MEMORANDDUM FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT 5 FOR THE AY 2017-18 EXHIBIT P10 TRUE COPY OF THE ORDER DATED 8.9.2020 PASSED BY THE 2ND RESPONDENT ON EXHIBIT P6 STAY PETITION FOR THE AY 2017-18