Wp(C)/20799/2012 Of M/S Marthoma Cheria Pally v. The Joint Director Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934 WP(C).No. 20799 of 2012 (Y) --------------------------- PETITIONER(S): ------------------------ M/S.MARTHOMA CHERIA PALLY, A.M. ROAD, KOTHAMANGALAM-686 691, REPRESENTED BY FR. MANU MATHEW. BY ADVS.SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A.KAMATH RESPONDENT(S): --------------------------- 1. THE JOINT DIRECTOR OF INCOME TAX, (OSD) (EXEMPTION) RANGE-4, KOCHI. - 682 005. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), ERNAKULAM - 682 018. ERNAKULAM - 682 018. 3. ASSISTANT DIRECTOR OF INCOME TAX (EXEMPTION), RANGE-4, KOCHI - 682 005. RANGE-4, KOCHI - 682 005. R1 TO R3 BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20799/2012 Y APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE ASSESSMENT ORDER DATED 21.12.2011 ISSUEDTO THE PETITIONER BY THE FIRST RESPONDENT FOR THE YEAR 2009-10. EXHIBIT P2: TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE2ND RESPONDENT FOR THE YEAR 2009-10. EXHIBIT P3: TRUE COPY OF THE STAY PETITION FOR THE YEAR 2009-10 FILED BYTHE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4: TRUE COPY OF THE ORDER PASSED BY THE THIRD RESPONDENTDATED 26.6.2012 ISSUED TO THE PETITIONER. EXHIBIT P5: TRUE COPY OF THE JUDGMENT IN W.(C)NO.15657. EXHIBIT P6: TRUE COPY OF THE NOTICE NO.ITA NO.61/R-4/E/CIT(A)-11/11-12 DATED25.7.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7: TRUE COPY OF THE LETTER DATED 30.7.2012 SUBMITTED BY THEPETITIONER. EXHIBIT P8: TRUE COPY OF THE ORDER DATED 13.8.2012 OF THE 2NDRESPONDENT. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ PA.TO JUDGE Kss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.20799/2012-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5[th] day of November, 2012 J U D G M E N T The writ petition is filed by the petitioner challenging Ext.P8 orderpassed by the Commissioner of Income Tax (Appeals)-II, Kochi on a staypetition filed by the petitioner. 2.Therein, a direction is issued to the petitioner to remit 50% of the demand raised in five equal monthly instalments. The schedule ofinstalments is the following: 1[st] Instalment is to be paid on or before 10/09/2012 andthe subsequent four instalments on or before 10/10/2012,10/11/2012, 10/12/2012 & 10/01/2013. There is a further direction that for the remaining 50% of the demand, the petitioner will not be treated as an assessee in default till January, 2013 ortill the disposal of substantive appeal whichever is earlier. 3.When the writ petition came up on 07/09/2012, this Courtdirected the petitioner to remit the first instalment before 20/09/2012 andthe time was extended upto that date. It is stated that the first instalmenthas been paid. Mainly, it is contended that Ext.P8 was passed withouthearing the petitioner. 4.Learned Standing Counsel on getting instructions submittedthat actually a notice was served on the petitioner, but there is a failure to appear which fact is recorded in Ext.P8 order. It is also submitted that thisCourt by Ext.P5 Judgment dated 05/07/2012 directed the stay petition to bedisposed of within a period of one month. petitioner will not be treated as an assessee in default till January, 2013 ortill the disposal of substantive appeal whichever is earlier. 3.When the writ petition came up on 07/09/2012, this Courtdirected the petitioner to remit the first instalment before 20/09/2012 andthe time was extended upto that date. It is stated that the first instalmenthas been paid. Mainly, it is contended that Ext.P8 was passed withouthearing the petitioner. 4.Learned Standing Counsel on getting instructions submittedthat actually a notice was served on the petitioner, but there is a failure to appear which fact is recorded in Ext.P8 order. It is also submitted that thisCourt by Ext.P5 Judgment dated 05/07/2012 directed the stay petition to bedisposed of within a period of one month. 5.The learned counsel for the petitioner submits that actuallythere will not be any liability for the petitioner and this fact can be proved byproducing the exemption orders. It is also submitted that by applicationdated 30/07/2012, the petitioner has approached the Commissioner ofIncome Tax (Appeal)-II, to furnish the last updated exemption order.Anyhow, this is a material which was not before the Appellate Authority.Therefore, if the petitioner wants to rely upon those materials, it is open tothe petitioner to produce the same and file appropriate application tomodify the order passed on the stay petition. Therefore, I need not go intothe merits of the matter at this stage. 6.The petitioner will pay the second instalment before20/11/2012 and file the application also before that date and if such anapplication is filed along with the required documents, the same will beconsidered and appropriate orders will be passed within a period of onemonth. The writ petition is, accordingly, disposed of. No costs. ms (T.R. Ramachandran Nair, Judge.)