Wp(C)/2601/2016 Of Pazhayakunnummel Service Co-Operative Bank Ltd v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 12TH DAY OF FEBRUARY 2016/23RD MAGHA, 1937 WP(C).No. 2601 of 2016 (A) --------------------------------------------- PETITIONER(S) : ------------------------- PAZHAYAKUNNUMMEL SERVICE CO-OPERATIVE BANK LTD.NO.1517, REPRESENTED BY ITS SECRETARY, KILLIMANOOR P.O, THIRUVANANTHAPURAM DISTRICT- 695 601. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN SRI.ADITHYA RAJEEV RESPONDENT(S) : ---------------------------- 1. THE INCOME TAX OFFICER, WARD-2(5), OFFICE OF THE JOINT COMMISSIONER OF INCOME TAX, RANGE-2, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM DISTRICT- 695 003. OFFICE OF THE JOINT COMMISSIONER OF INCOME TAX, RANGE-2, AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM DISTRICT- 695 003. 2. THE COMMISSIONER OF INCOME TAX(APPEALS), THIRUVANANTHAPURAM- 695 003. THIRUVANANTHAPURAM- 695 003. BY ADV.SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Msd. WP(C).No. 2601 of 2016 (A) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS : ---------------------------------------- EXT.P1:A TRUE COPY OF THE CERTIFICATE DATED 29.04.1999, ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. EXT:P3:A TRUE COPY OF THE ASSESSMENT ORDER FOR THE YEAR 2008-2009 DATED 27.03.2014.2008-2009 DATED 27.03.2014. EXT:P4:A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ALONG WITH COVERING LETTER DATED 09.04.2014.THE PETITIONER BEFORE THE 2ND RESPONDENT ALONG WITH COVERING LETTER DATED 09.04.2014. EXT:P5:A TRUE COPY OF THE STAY PETITION DATED 16.09.2015, FILED BY THE PETITIONER IN EXT.P4 APPEAL.THE PETITIONER IN EXT.P4 APPEAL.EXT:P6:A TRUE COPY OF THE INTERIM ORDER DATED 30.09.2014 IN I.A.NO.2364/2014 IN ITA NO.188/2014.I.A.NO.2364/2014 IN ITA NO.188/2014. EXT:P7:A TRUE COPY OF THE JUDGMENT DATED 25.09.2015 IN WP(C)NO.28927 OF 2015.WP(C)NO.28927 OF 2015.EXT:P8:A TRUE COPY OF THE ORDER IN ITA NO.14/TVM/CIT(A) TVM/2014-15 DATED 08.01.2016.2014-15 DATED 08.01.2016. EXT:P9:A TRUE COPY OF THE JUDGMENT DATED 23.12.2015 IN WP(C)NO.39464 OF 2015.WP(C)NO.39464 OF 2015. RESPONDENT(S)' EXHIBITS : ------------------------------------------- NIL //TRUE COPY// P.A.TO JUDGE. Msd. A.K.JAYASANKARAN NAMBIAR, J..............................................................W.P.(C).No.2601 Of 2016.............................................................Dated this the 12[th] day of February, 2016 J U D G M E N T EXT:P7:A TRUE COPY OF THE JUDGMENT DATED 25.09.2015 IN WP(C)NO.28927 OF 2015.WP(C)NO.28927 OF 2015.EXT:P8:A TRUE COPY OF THE ORDER IN ITA NO.14/TVM/CIT(A) TVM/2014-15 DATED 08.01.2016.2014-15 DATED 08.01.2016. EXT:P9:A TRUE COPY OF THE JUDGMENT DATED 23.12.2015 IN WP(C)NO.39464 OF 2015.WP(C)NO.39464 OF 2015. RESPONDENT(S)' EXHIBITS : ------------------------------------------- NIL //TRUE COPY// P.A.TO JUDGE. Msd. A.K.JAYASANKARAN NAMBIAR, J..............................................................W.P.(C).No.2601 Of 2016.............................................................Dated this the 12[th] day of February, 2016 J U D G M E N T The challenge in the writ petition is against Ext.P8 conditionalorder of stay passed by the 2[nd] respondent in a stay applicationfiled along with an appeal against an order of assessment under theIncome Tax Act for the assessment year 2008-2009. The grievanceof the petitioner in the writ petition is that although he could notappear before the 2[nd] respondent on the date when the stayapplication was posted, the 2[nd] respondent proceeded to passExt.P8 order insisting on a payment of 50% of the amountsconfirmed against the petitioner by the assessment order as acondition for the grant of stay of recovery of balance during thependency of the appeal. It is the case of the petitioner that on asimilar issue various income tax appeals are pending before aDivision Bench of this Court, where this Court granted anunconditional stay. It is contended, therefore, that the 2[nd]respondent appellate authority while considering the stay petitionought to have taken note of the orders passed by this Court in W.P.(C). No. 2601 of 2016 connected matters and granted an unconditional stay rather than aconditional stay requiring him to pay 50% of the demandconfirmed against him during the pendency of the appeal. 2. I have heard the learned counsel for the petitioner andalso the learned Standing counsel for the respondents. 3. On a consideration of the facts and circumstances of thecase as also the submissions made across the bar, I find that,although, the petitioner was not represented before the 2[nd]respondent at the time of hearing of the stay petition, the groundof challenge in the writ petition against Ext.P8 order is not that theorder is vitiated on account of violation of the principles of naturaljustice. The petitioner contends that on merits, the issue is onewhere the 2[nd] respondent ought to have taken note of the orderspassed by this Court staying recovery proceedings pendingdisposal of the appeal, and granted an unconditional stay. I findforce in the said contention of the learned counsel for thepetitioner and insofar as the 2[nd] respondent has passed only aconditional order of stay, I quash Ext.P8 order and direct the 2[nd]respondent to consider and pass orders in the appeal itself within a W.P.(C). No. 2601 of 2016 period of four months from the date of receipt of a copy of thisjudgment after hearing the petitioner. The recovery steps forrecovery of amounts confirmed against the petitioner by Ext.P3assessment order shall be kept in abeyance till such time as ordersare passed by the 2[nd] respondent as directed and communicated tothe petitioner. The petitioner shall produce a copy of the writpetition along with a copy of this judgment before the 2[nd]respondent for further action. A.K.JAYASANKARAN NAMBIAR JUDGE