Wp(C)/2894/2020 Of The Kaviyoor Service Co-Operative Bank Ltd v. The Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS MONDAY, THE 3RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941 WP(C).No.2894 OF 2020(J) PETITIONER: THE KAVIYOOR SERVICE CO-OPERATIVE BANK LTD.,NO.A707, KAVIYOOR P.O., THIRUVALLA-689582, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: 1THE COMMISSIONER OF INCOME TAX (APPEALS),PUBLIC LIBRARY BUILDINGS, SASHTRI ROAD, KOTTAYAM-686001.2THE INCOME TAX OFFICERWARD 5, OFFICE OF THE INCOME TAX, THIRUVALLA-689582. SRI.JOSE JOSEPH, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS, J. ------------------------------------- W.P.(C) No. 2894 of 2020 ------------------------------------- Dated this the 3[rd] day of February, 2020 J U D G M E N T The case projected in this Writ Petition (Civil) are as follows:The petitioner is a primary agricultural credit society registeredunder the provisions of the Co-operative Societies Act and Rulesframed thereunder. The petitioner is an assessee on the file of the2[nd] respondent. The assessing officer assessed a total income ofRs.89,09,079/- and arrived at a finding of aggregate income taxliability of Rs.35,50,244/- under various heads and issued a demandnotice under Sec.156 of the Income Tax Act, demanding an amountof Rs.35,50,244/-. Aggrieved by the assessment made, an appealwas preferred before the 1[st] respondent Commissioner of IncomeTax Appeals. The petitioner also moved a petition before therecovery officer to stay the recovery proceedings since the appeal ispending before him. Now the Income Tax Officer issued an order toremit 20% of the total demand raised and states that the stay ofdemand will be considered only on payment of 20% of the totaldemand amount. Since the stay granted is only a conditional stay, W.P.(C) No. 2894 of 2020 ..3.. the petitioner preferred a petition for complete stay of the recoveryproceedings. No orders were passed on the stay petition. Theappeal and stay against the assessment and demand notice arepending and if the amount is recovered serious prejudice will becaused to the petitioner Bank. It is in the light of these avermentsand contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: “ i.To issue a writ of certiorari quashing Exhibits P2, P3 and P7;ii.To issue a writ of mandamus or other appropriate writ, order `or direction commanding and compelling the respondents to consider the Ext.P5 appeal and Exts.P6 and P8 stay petitions preferred by the petitioner within a time frame stipulated by this Hon'ble Court.ii.To issue a writ of mandamus or other appropriate writ, order `or direction commanding and compelling the respondents to consider the Ext.P5 appeal and Exts.P6 and P8 stay petitions preferred by the petitioner within a time frame stipulated by this Hon'ble Court. iii.Issue a writ of mandamus or other appropriate writ order or direction commanding and compelling the respondents not to proceed with any recovery proceedings till the stay petitions are considered and appropriate orders passed therein.direction commanding and compelling the respondents not to proceed with any recovery proceedings till the stay petitions are considered and appropriate orders passed therein.iv.To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the case.”Court may deem fit and proper in the case.” 2.Heard Sri.P.C.Sasidharan, learned counsel appearing for the petitioner, Sri.Jose Joseph, learned Standing Counsel forthe Income Tax Department, Government of India, appearing forthe respondents. 3. Sri.Jose Joseph, learned Standing Counsel for theIncome Tax Department, appearing for the respondents submitsthat it is for the petitioner to make pre-deposit of 20% of the W.P.(C) No. 2894 of 2020 demand amount for securing stay, etc. 2.Heard Sri.P.C.Sasidharan, learned counsel appearing for the petitioner, Sri.Jose Joseph, learned Standing Counsel forthe Income Tax Department, Government of India, appearing forthe respondents. 3. Sri.Jose Joseph, learned Standing Counsel for theIncome Tax Department, appearing for the respondents submitsthat it is for the petitioner to make pre-deposit of 20% of the W.P.(C) No. 2894 of 2020 demand amount for securing stay, etc. 4.Without getting into the merits of the controversy inany manner, it is for the 1[st] respondent to take up the matter inExt.P-6 stay application filed in Ext.P-5 appeal without muchdelay, and after affording reasonable opportunity of being heard tothe petitioner, will pass orders without much delay, preferablywithin a period of 4 to 6 weeks from the date of production of acertified copy of this judgment. Until orders are passed on Ext.P-6stay application, further coercive steps for enforcement ofimpugned Ext.P-2 assessment order may be kept in abeyance. It ismade clear that the 1[st] respondent may pass orders on Ext.P-6 stayapplication in accordance with law. Without getting into the merits of the controversy in With these observations and directions, the above WritPetition (Civil) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C) No. 2894 of 2020 ..5.. APPENDIX PETITIONER'S EXHIBITS: