Wp(C)/25786/2017 Of Subhash Chandran.p v. The Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939 WP(C).No. 25786 of 2017 (W) ---------------------------- PETITIONER:------------------- SUBHASH CHANDRAN.P, SHYJU COTTAGE, B.T.S ROAD, ATTINGAL, THIRUVANANTHAPURAM. BY ADVS.SRI.BIJU BALAKRISHNAN SMT.V.S.RAKHEE SRI.P.V.JEEVESH RESPONDENT(S):------------------------- 1. THE COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN, KAUDIAR, THIRUVANANTHAPURAM, PIN-695003. AAYAKAR BHAVAN, KAUDIAR, THIRUVANANTHAPURAM, PIN-695003. 2. THE JOINT COMMISSIONER OF INCOME TAX, RANGE-I, 2ND FLOOR, AAYAKAR BHAVAN, KAUDIAR P.O., THIRUVANANTHAPURAM, PIN-695003. RANGE-I, 2ND FLOOR, AAYAKAR BHAVAN, KAUDIAR P.O., THIRUVANANTHAPURAM, PIN-695003. 3. INCOME TAX OFFICER, WARD (3), KAUDIAR P.O., THIRUVANANTHAPURAM, PIN-695003. WARD (3), KAUDIAR P.O., THIRUVANANTHAPURAM, PIN-695003. BY SRI. K.M.V.PANDALAI, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25786 of 2017 (W) ---------------------------- APPENDIX ---------------- PETITIONER(S)' EXHIBITS ---------------------------------- EXHIBIT-P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 23/03/2015 OF THE 2ND RESPONDENT2ND RESPONDENT EXHIBIT-P2 TRUE COPY OF THE NOTICE UNDER SEC. 274 R/W SEC. 271 (1) (C) OF THE INCOME TAX ACT DATED 23/03/2015THE INCOME TAX ACT DATED 23/03/2015 EXHIBIT-P3 TRUE COPY OF THE DEMAND NOTICE DATED 23/03/2015 OF THE 3RD RESPONDENTRESPONDENT EXHIBIT-P4 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE IST RESPONDENTIST RESPONDENT EXHIBIT-P5 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE IST RESPONDENTBEFORE THE IST RESPONDENT EXHIBIT-P6 TRUE COPY OF THE JUDGMENT DATED 01/03/2017 IN W.P(C) 6160/2017 EXHIBIT-P7 TRUE COPY OF THE ORDER BY THE IST RESPONDENT DATED 06/07/201706/07/2017 RESPONDENT(S)' EXHIBITS NIL --------------------------------------- /TRUE COPY/ PA TO JUDGE A.K.JAYASANKARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25786 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of August, 2017 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P7conditional order of stay, passed by the 1[st] appellate authority, inproceedings under the Income Tax Act. In the writ petition, it isthe case of the petitioner that, while passing Ext.P7 order, the 1[st]respondent, did not exercise his discretion validly. 2. I have heard the learned counsel for the petitioner and thelearned Standing Counsel for the respondents. 3. On a consideration of the facts and circumstances of thecase and the submissions made across the bar, I find from a perusalof Ext.P7 order that, the said order was passed pursuant to thedirections of this Court in Ext.P6 judgment, whereby, in a writpetition filed by the petitioner, this Court had directed the appellateauthority to consider and pass orders on the stay petition, within aperiod of two months from the date of receipt of a certified copy ofthis judgment. It is also made clear that, coercive proceedings willbe kept in abeyance till such time as orders were passed asdirected. It is relevant to note that, in Ext.P6 judgment, there wasno direction to the appellate authority to afford a personal hearing 3. On a consideration of the facts and circumstances of thecase and the submissions made across the bar, I find from a perusalof Ext.P7 order that, the said order was passed pursuant to thedirections of this Court in Ext.P6 judgment, whereby, in a writpetition filed by the petitioner, this Court had directed the appellateauthority to consider and pass orders on the stay petition, within aperiod of two months from the date of receipt of a certified copy ofthis judgment. It is also made clear that, coercive proceedings willbe kept in abeyance till such time as orders were passed asdirected. It is relevant to note that, in Ext.P6 judgment, there wasno direction to the appellate authority to afford a personal hearing to the petitioner. On a perusal of Ext.P7, I find, however, that theappellate authority had sent a notice dated 16.05.2017 to thepetitioner, fixing 12.06.2017 as the date for a hearing. It is seen fromExt.P7 order that, when neither the petitioner nor his representativeappeared for the hearing on the date fixed, an effort was made tocontact the petitioner over telephone on 03.07.2017, and it is whendespite the said effort, the petitioner did not appear for a hearing,that Ext.P7 order was passed by the 1[st] respondent. On a perusal ofExt.P7 order, I do not find it to be vitiated on account of anyjurisdictional error or arbitrariness, or on account of a non-compliance with the rules of natural justice, so as to warrant aninterference with the same in these proceedings under Article 226 ofthe Constitution of India. 4. The learned counsel for the petitioner would submit that thepetitioner is currently facing liquidity problems, and hence, thedirections in Ext.P7 order, that require him to pay 50% of the balancedemand outstanding in installmens, may be modified. Taking note ofthe said plea of the learned counsel for the petitioner, whilesustaining the reasoning in Ext.P7 order, I deem it in the interests ofjustice to modify the directions therein to read that there will be astay of 70% of the demand and the petitioner would be required to pay only the balance 30% of the demand, in six equal and successivemonthly installments, commencing from 20.08.2017. Save for thismodification, the challenge in the writ petition against Ext.P7 order isotherwise, dismissed. The petitioner shall produce a copy of this writpetition along with a copy of this judgment, before the 1[st] respondent,for further action. sm/ Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE