Wp(C)/24999/2019 Of Kallettumkara Service Co-Operative Bank Limited v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941 WP(C).No.24983 OF 2019(W) PETITIONER: M/S. KALLETTUMKARA SERVICE CO-OPERATIVE BANK LIMITEDKALLETTUMKARA,THRISSUR-680683REPRESENTED BY ITS SECRETARY MRS.DAISY.E.P. BY ADVS.SRI.ANIL D. NAIRSRI.R.SREEJITHSMT. ARYA ANILSHRI.GOKULRAJ L.SMT.SRI HARINI S.P. RESPONDENTS: 1THE INCOME TAX OFFICER,WARD-2(2),THRISSUR - 680 001 2THGE COMMISSIONER OF INCOME TAX(APPEALS),3RD FLOOR,AAYKAR BHAVAN,THRISSUR-680001. BY SRI. NAVNEETH N NATH FOR SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON20.09.2019, ALONG WITH WP(C).24999/2019(Y), WP(C).25002/2019(A),WP(C).25021/2019(C), WP(C).25023/2019(C), THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: WP(C).No.24983 OF 2019(W)& connected cases. 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941 WP(C).No.24999 OF 2019(Y) PETITIONER: M/S. KALLETTUMKARA SERVICE CO-OPERATIVE BANK LIMITEDKALLETTUMKARA, THRISSUR-680683, REPRESENTED BY ITS SECRETARY MRS.DAISY E.P. BY ADVS.SRI.ANIL D. NAIRSRI.SREEJITH R.NAIRSMT. ARYA ANILSHRI.GOKULRAJ L.SMT.SRI HARINI S.P. RESPONDENTS: 1THE INCOME TAX OFFICERWARD-2(2), THRISSUR-680001.2THE COMMISSIONER OF INCOME TAX (APPEALS),3RD FLOOR, AAYKAR BHAVAN, THRISSUR-680001. BY SRI. NAVNEETH N NATH FOR SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON20.09.2019, ALONG WITH WP(C).24983/2019(W), WP(C).25002/2019(A),WP(C).25021/2019(C), WP(C).25023/2019(C), THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: connected cases. 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941WP(C).No.25002 OF 2019(A) PETITIONER: M/S. KALLETTUMKARA SERVICE CO-OPERATIVE BANK LIMITEDKALLETTUMKARA,THRISSUR-680683, REPRESENTED BY ITS SECRETARY MRS.E.P.DAISY. BY ADVS.SRI.ANIL D. NAIRSRI.SREEJITH R.NAIRSMT. ARYA ANILSHRI.GOKULRAJ L.SMT.SRI HARINI S.P. RESPONDENTS: 1THE INCOME TAX OFFICERWARD -2(2).,THRISSUR-680001. 2THE COMMISSIONER OF INCOME TAX(APPEALS),3RD FLOOR,AAYKAR BHAVAN,THRISSUR-680001. BY SRI. NAVNEETH N NATH FOR SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON20.09.2019, ALONG WITH WP(C).24983/2019(W), WP(C).24999/2019(Y),WP(C).25021/2019(C), WP(C).25023/2019(C), THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: WP(C).No.24983 OF 2019(W)& connected cases. 4 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941 WP(C).No.25021 OF 2019(C) PETITIONER: M/S. KALLETTUMKARA SERVICE CO-OPERATIVE BANK LIMITEDKALLETTUMKARA, THRISSUR-680683,REPRESENTED BY ITS SECRETARY MRS.DAISY E.P. BY ADVS.SRI.ANIL D. NAIRSRI.SREEJITH R.NAIRSMT. ARYA ANILSHRI.GOKULRAJ L.SMT.SRI HARINI S.P. RESPONDENTS: 1THE INCOME TAX OFFICERWARD-2 (2), THRISSUR-680 001. 2THE COMMISSIONER OF INCOME TAX(APPEALS)3RD FLOOR, AAYKAR BHAVAN, THRISSUR-680 001. BY SRI. NAVNEETH N NATH FOR SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON20.09.2019, ALONG WITH WP(C).24983/2019(W), WP(C).24999/2019(Y),WP(C).25002/2019(A), WP(C).25023/2019(C), THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: connected cases. 5 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941WP(C).No.25023 OF 2019(C) PETITIONERS: M/S. KALLETTUMKARA SERVICE CO-OPERATIVE BANK LIMITEDKALLETTUMKARA, THRISSUR-680 683, REPRESENTED BY ITS SECRETARY MRS. DAISY E.P. BY ADVS.SRI.ANIL D. NAIRSMT. ARYA ANILSHRI.GOKULRAJ L.SMT.SRI HARINI S.P. RESPONDENTS: 2THE COMMISSIONER OF INCOME TAX(APPEALS)3RD FLOOR, AAYKAR BHAVAN, THRISSUR-680 001. BY SRI. NAVNEETH N NATH FOR SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON20.09.2019, ALONG WITH WP(C).24983/2019(W), WP(C).24999/2019(Y),WP(C).25002/2019(A), WP(C).25023/2019(C), THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: connected cases. 5 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941WP(C).No.25023 OF 2019(C) PETITIONERS: M/S. KALLETTUMKARA SERVICE CO-OPERATIVE BANK LIMITEDKALLETTUMKARA, THRISSUR-680 683, REPRESENTED BY ITS SECRETARY MRS. DAISY E.P. BY ADVS.SRI.ANIL D. NAIRSMT. ARYA ANILSHRI.GOKULRAJ L.SMT.SRI HARINI S.P. RESPONDENTS: 1THE INCOME TAX OFFICERWARD-2 (2), THRISSUR-680 001 2THE COMMISSIONER OF INCOME TAX (APPEALS)3RD FLOOR, AAYKAR BHAVAN, THRISSUR-680 001 BY SRI. NAVNEETH N NATH FOR SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON20.09.2019, ALONG WITH WP(C).24983/2019(W), WP(C).24999/2019(Y),WP(C).25002/2019(A), WP(C).25021/2019(C), THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: WP(C).No.24983 OF 2019(W)& connected cases. 6 JUDGMENT [ W.P.(C.)24983/2019, W.P.(C.)24999/2019, W.P.(C.)25002/2019, W.P.(C.)25021/2019 & W.P.(C.).25023/2019 ] Heard Sri. Anil D Nair, the learned counsel for the petitioner and Sri. Navaneeth N. Nath holding forSri. Jose Joseph, the learned Standing Counsel. 2.The petitioner is same in all these writpetitions. The circumstances and text of the ordersimpugned in the writ petitions are also same andsimilar except that the independent orders are passedfor separate assessment years. The petitioner is same in all these writ 3. The petitioner challenges Ext.P4 order of the second respondent as illegal and amounts to refusing toexercise the jurisdiction conferred on the secondrespondent under Section 251(1)(c) of the Income TaxAct, 1961 (for short 'the I.T. Act'). The operativeportion of Ext.P4 common order reads thus:- WP(C).No.24983 OF 2019(W)& connected cases. 7 "2. The authorised representative stated that no stay petitions have been filed before theassessing officer for all these years. In thiscircumstances, the appellant is directed to filestay petition before Assessing Officer to getsuitable remedy. 3.All the five stay petition of the appellant aredisposed of accordingly." 4.Sri. Anil D. Nair contends that the remediesavailable to the assessee under Section 220(6) andSection 251(1)(c) of the I. T. Act are independent. Thepetitioner assessee has the discretion and liberty toavail one of the remedies of appeal. Having alreadyavailed the remedy of appeal under Section 246 of theI. T. Act, the second respondent ought to haveexercised the jurisdiction and discretion, passed ordersas are warranted, keeping in view the grounds raisedby the petitioner against the orders of assessmentimpugned in the appeal. The petitioner draws theattention of the Court to the Full Bench judgment ofthis Court in the Mavilayi Service Co-operative Bankv. Commissioner of Income Tax [2019 (2) KLT connected cases. 8 597 (F.B.)] and prays for granting stay pending appeal to the petitioner. The second respondent ought not tohave compelled the petitioner to move an applicationunder Section 220(6) of the I. T. Act. connected cases. 8 597 (F.B.)] and prays for granting stay pending appeal to the petitioner. The second respondent ought not tohave compelled the petitioner to move an applicationunder Section 220(6) of the I. T. Act. 5.Adv. Navaneeth N. Nath, submits that Ext.P4shall not be treated as an order refusing to grant stayor calling upon the petitioner to deposit amountcontrary to the merits stated in the memorandum ofappeal or the principle laid down by this Court in theFull Bench judgment referred to above. According tohim, the second respondent reminds the first optionavailable and issue ought not to be raised by filing thewrit petitions. He alternatively contends that, if thepetitioner is not convinced with the conclusion inExt.P4, the second respondent does not have objectionto reconsider the request of petitioner for grant of staymade in Ext.P3 and pass orders in accordance with law. 6.I have taken note of the limited submissionsmade by learned counsel appearing for the parties andperused the record. connected cases. 9 7.The operative portion of Ext.P4 is already excerpted in the preceding paragraph. Perusal ofexcerpted portion shows that the second respondentinstead of exercising the discretion and powerindependently available to him under Section 251(1)(c)of the I. T. Act, more in the nature of an advicedisposed of the stay applications vide order dated29.08.2019 in Ext.P4. Without much deliberation, it canbe recorded that the said exercise of jurisdiction ordiscretion by the second respondent is not within thesquare where discretion and jurisdiction are vested withhim. 8.This Court is convinced by the alternativesubmission made by the learned counsel appearing forthe respondents. Hence, Ext.P4 common order is setaside. The matter is remitted to second respondent forconsideration and disposal of Ext. P3 stay petitions inall the writ petitions preferably within two months fromthe date of receipt of a copy of the judgment. Thereshall be stay of coercive steps against recovery of WP(C).No.24983 OF 2019(W)& connected cases. 10 amount which is impugned in the respective appeals for ten weeks from today. The writ petitions are disposed of. sd/- S.V.BHATTI JUDGE DCS WP(C).No.24983 OF 2019(W)& connected cases. 11 APPENDIX OF WP(C) 24983/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 08.12.2016 FOR A.Y.2009-10 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. EXHIBIT P5TRUE COPY OF JUDGMENT IN W.A.2146/18 DATED 2.11.2018 PASSED BY THE HON'BLE HIGH COURT IN PETITIONER'S OWN CASE FOR THE ASSESSMENTYEAR 2008-09. connected cases. 12 APPENDIX OF WP(C) 24999/2019 PETITIONER'S/S EXHIBITS: WP(C).No.24983 OF 2019(W)& connected cases. 13 APPENDIX OF WP(C) 25002/2019 PETITIONER'S/S EXHIBITS: connected cases. 14 APPENDIX OF WP(C) 25021/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF ASSESSMENT ORDER DATED 9.11.2017 FOR THE ASSESSMENT YEAR 2010-11.EXHIBIT P2TRUE COPY OF THE APPEAL FIELD BEFORE THE 2ND RESPONDENT.EXHIBIT P3TRUE COPY OF THE STAY PETITION FILED BEFORETHE 2ND RESPONDENT.EXHIBIT P4TRUE COPY OF THE ORDER DATED 29.8.2019 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT.EXHIBIT P5TRUE COPY OF JUDGMENT DATED 2.11.2018 PASSED BY THE HON'BLE HIGH COURT IN PETITIONERS OWN CASE FOR THE ASSESSMENT YEAR 2008-09. connected cases. 15 APPENDIX OF WP(C) 25023/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 24.11.2018 FOR THE A.Y. 2016-17 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P2TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P3TRUE COPY OF THE ORDER DATED 29.08.2019 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P4TRUE COPY OF THE ORDER DATED 29.08.2019 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. connected cases. 15 APPENDIX OF WP(C) 25023/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 24.11.2018 FOR THE A.Y. 2016-17 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P2TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P3TRUE COPY OF THE ORDER DATED 29.08.2019 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P4TRUE COPY OF THE ORDER DATED 29.08.2019 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P5TRUE COPY OF THE JUDGMENT IN WA 2146/18 DATED 2.11.2018 IN PETITIONER'S OWN CASE FOR THE A.Y. 2008-09.