Wp(C)/20475/2012 Of Al-Ameen Education Trust v. The Additional Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934 WP(C).No. 20475 of 2012 (H) --------------------------- PETITIONER(S):------------- AL-AMEEN EDUCATIONAL TRUST KULAPPULLY P.O., SHORANUR - 679122 PALAKKAD DISTRICT REPRESENTED BY SHRI.ABDULLA C.K., SECRETARY. BY ADVS.SRI.T.M.SREEDHARAN (SR.) SRI.V.P.NARAYANAN SMT.BOBY M.SEKHAR RESPONDENT(S): -------------- 1. THE ADDITIONAL COMMISSIONER OF INCOME TAX PALAKKAD RANGE, AYYAKKAR BHAVAN, ENGLISH CHURCH ROAD PALAKKAD - 678014. PALAKKAD RANGE, AYYAKKAR BHAVAN, ENGLISH CHURCH ROAD PALAKKAD - 678014. 2. THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, IST FLOOR, (BLOCK C-I & C-II) KENDRIYA BHAVAN, OPP. CSEZ, KAKKANAD COCHIN-682037, REPRESENTED BY ASSISTANT REGISTRAR. 3. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-I, PALAKKAD - 678001. CIRCLE-I, PALAKKAD - 678001. 4. THE TAX RECOVERY OFFICER OFFICE OF THE ADDITIONAL COMMISSIONER OF INCOME TAX PALAKKAD RANGE, AAYAKAR BHAVAN, PALAKKAD - 678014. PALAKKAD RANGE, AAYAKAR BHAVAN, PALAKKAD - 678014. BY ADV.JOSE JOSEPH, SC (INCOME TAX) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON11-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 20475 OF 2012 APPENDIX PETITIONER(S) EXHIBITS EXT.P1TRUE COPY OF THE ORDER DATED 31/3/2008 ISSUED BY THE ISTRESPONDENT U/S.271D FOR THE YEAR 2005-06.RESPONDENT U/S.271D FOR THE YEAR 2005-06. EXT.P2TRUE COPY OF THE ORDER DATED 23/6/2009 ISSUED BY THE ISTRESPONDENT U/S.271D FOR THE YEAR 2006-07.RESPONDENT U/S.271D FOR THE YEAR 2006-07. EXT.P3TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR 2005-06 ON21/12/2010.PETITIONER BEFORE THE 2ND RESPONDENT FOR 2005-06 ON21/12/2010. EXT.P3(A) TRUE COPY OF STAY PETITION FILED BY THE PETITIONER BEFORETHE 2ND RESPONDENT FOR 2005-06 ON 21/12/2010.THE 2ND RESPONDENT FOR 2005-06 ON 21/12/2010. EXT.P4TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR 2006-07 ON21/12/2010.PETITIONER BEFORE THE 2ND RESPONDENT FOR 2006-07 ON21/12/2010. EXT.P4(A) TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONERBEFORE THE 2ND RESPONDENT FOR 2006-07 ON 21/12/2010.BEFORE THE 2ND RESPONDENT FOR 2006-07 ON 21/12/2010. EXT.P5TRUE COPY OF THE ORDER DATED 28/12/2011 ALONG WITH COVERINGLETTER DATED 23/3/2012 ISSUED BY THE 2ND RESPONDENT.LETTER DATED 23/3/2012 ISSUED BY THE 2ND RESPONDENT. EXT.P6TRUE COPY OF THE NOTICE NO.AABTAO780A/TRO/PKD/2012-13 DATED25/6/2012 ISSUED BY THE 4TH RESPONDENT.25/6/2012 ISSUED BY THE 4TH RESPONDENT. EXT.P7TRUE COPY OF THE LETTER DATED 3/7/2012 SENT BY THE PETITIONER TO THE 4TH RESPONDENT.PETITIONER TO THE 4TH RESPONDENT. RESPONDENTS' EXHIBITS : NIL \\ TRUE COPY \\ PA TO JUDGE ANTONY DOMINIC, J ........................................ W.P.(C).20475/2012 .............................................. Dated this the 11[th] day of September, 2012 JUDGMENT Heard the learned senior counsel for the petitioner andthe learned Standing Counsel appearing for the respondents. EXT.P6TRUE COPY OF THE NOTICE NO.AABTAO780A/TRO/PKD/2012-13 DATED25/6/2012 ISSUED BY THE 4TH RESPONDENT.25/6/2012 ISSUED BY THE 4TH RESPONDENT. EXT.P7TRUE COPY OF THE LETTER DATED 3/7/2012 SENT BY THE PETITIONER TO THE 4TH RESPONDENT.PETITIONER TO THE 4TH RESPONDENT. RESPONDENTS' EXHIBITS : NIL \\ TRUE COPY \\ PA TO JUDGE ANTONY DOMINIC, J ........................................ W.P.(C).20475/2012 .............................................. Dated this the 11[th] day of September, 2012 JUDGMENT Heard the learned senior counsel for the petitioner andthe learned Standing Counsel appearing for the respondents. 2.Petitioner is a Charitable Trust which has established anEngineering College at Shornur. Exts.P1 and P2 are the orderspassed against the petitioner in a penalty proceedings whichwere initiated under Section 271D of the Income Tax Act.Aggrieved by these orders, petitioner filed appeals which wererejected. Thereafter, petitioner filed Exts.P3 and P4 Appealsalong with Exts.P3(a) and P4(a) stay petitions. Appeals werefiled before the 2[nd] respondent. Although stay petitions wereheard instead of passing orders thereon, Tribunal chose tohear the Appeals itself. Accordingly appeals were heard.However, in Ext.P5 order, there was difference of opinionbetween the members. As a result, the matter now standsreferred to be heard by a 3[rd] member. In the meanwhile,Ext.P6 notice, demanding payment of the penalty andthreatening of coercive action in the event of default, has beenissued. This led the petitioner to file this writ petition. 3.Although the learned Standing Counsel appearing forthe respondents contended that in the absence of any order of stay restraining the Department from realizing the amountsdue under Exts.P1 and P2, they were entitled to have issuedExt.P6, fact remains that the appeals have been heard and inthe peculiar circumstances pointed out, the matter now standsreferred to be heard by a 3[rd] member. That apart, it is alsosubmitted by the learned senior counsel for the petitioner thatRs.25,72,602/- has been paid by him. 4.In such circumstances, I dispose of this writ petition withthe following directions. Tribunal shall expeditiously hear and passorders on Exts.P3 and P4 appeals. In themeantime, subject to the petitioner remitting anamount of Rs.15,00,000/- within three weeksfrom today, further proceedings pursuant toExt.P6 will be kept in abeyance. Sd/- ANTONY DOMINIC, JUDGE mrcs /true copy/ PA To Judge