Wp(C)/30733/2016 Of Nirmithi Kendra v. Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938 WP(C).No. 30733 of 2016 (N) ---------------------------- PETITIONER : ---------------------- M/S. NIRMITHI KENDRA, NEAR CIVIL STATION, AYYANTHOLE, THRISSUR- 680 003. REPRESENTED BY MR. BOSCO M.M., EXECUTIVE SECRETARY & PROJECT MANAGER. BY ADVS.SRI.ANIL D. NAIR SRI.R.SREEJITH KUM.SOUMYA PRAKASH KUM.MEKHALA M.BENNY RESPONDENT(S): ---------------------------- 1. THE DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTIONS), OFFICE OF COMMISSIONER OF INCOME TAX (EXEMPTION), KOCHI-682 018. OFFICE OF COMMISSIONER OF INCOME TAX (EXEMPTION), KOCHI-682 018. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), AAYKAR BHAVAN, THRISSUR, PIN- 680 001. AAYKAR BHAVAN, THRISSUR, PIN- 680 001. BY SRI.K.M.V.PANDALAI, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30733 of 2016 (N) ------------------------------------------ APPENDIX PETITIONER(S)' EXHIBITS ---------------------------------------- EXT. P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 22.2.2016 FOR THE ASSESSMENT YEAR 2013-14. ASSESSMENT YEAR 2013-14. EXT. P2 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE 2ND RESPONDENT. 2ND RESPONDENT. EXT. P3 TRUE COPY OF THE STAY PETITION FILED BEFORE THE 2ND RESPONDENT. RESPONDENT. EXT. P4 TRUE COPY OF THE JUDGMENT DATED 8.4.2016 IN W.P.C. NO. 14234/2016 (D) W.P.C. NO. 14234/2016 (D) EXT. P5 TRUE COPY OF THE NOTICE DATED 11.7.2016 ISSUED BY THE 2ND RESPONDENT. RESPONDENT. EXT. P6 TRUE COPY OF THE OFFICE MEMORANDUM OF CBDT DATED 29.7.2016. EXT. P7 TRUE COPY OF THE ORDER DATED 17.8.2016 ISSUED BY THE 2ND RESPONDENT. RESPONDENT. RESPONDENT(S)' EXHIBITS: ------------------------------------------ NIL /TRUE COPY/ P.S.TO JUDGE A.M. SHAFFIQUE, J.===============W.P. (C) No. 30733 of 2016================== Dated this, the 21[st] day of October, 2016 J U D G M E N T This writ petition has been filed inter alia seeking the followingreliefs:- “(a)To call for the records leading to issuance ofExhibit P7 and quash the same by issuing a writ ofCertiorari. (b)To issue a writ of mandamus, and such otherwrit, order or direction, directing the 2[nd] respondentto take on file the application for stay pursuant toOffice Memorandum issued by CBDT. (c)Pending hearing and final disposal of this writpetition, this Hon'ble Court be pleased to grant stayof recovery of tax demanded under Exhibit P7.” 2.Petitioner is a Government of Kerala Undertaking, which had preferred appeal and stay petition against an order ofassessment. A conditional order of stay was passed by which thepetitioner was directed to remit 50% of the demand. When theabove matter came up for hearing before this Court, this Courtdirected the petitioner to pay 15% of the demand within a period offour weeks. -:2:- 3.Learned counsel appearing for the petitioner submitsthat the said amount had been deposited as per chelan dated20/10/2016. 4.Having regard to the fact that 15% of the amount hasbeen deposited, I am of the view that a direction can be issued tothe appellate authority to consider the appeal on merits and untilsuch time, further proceedings pursuant to the order ofassessment can be stayed. Accordingly, this writ petition is disposed of as under:- (i)Ext.P7 shall stand modified to the extent the petitioneris directed to pay 15% of the demand which has already beenpaid as per chelan dated 20/10/2016. (ii)The appellate authority shall consider the appeal onmerits and pass appropriate orders. -:2:- 3.Learned counsel appearing for the petitioner submitsthat the said amount had been deposited as per chelan dated20/10/2016. 4.Having regard to the fact that 15% of the amount hasbeen deposited, I am of the view that a direction can be issued tothe appellate authority to consider the appeal on merits and untilsuch time, further proceedings pursuant to the order ofassessment can be stayed. Accordingly, this writ petition is disposed of as under:- (i)Ext.P7 shall stand modified to the extent the petitioneris directed to pay 15% of the demand which has already beenpaid as per chelan dated 20/10/2016. (ii)The appellate authority shall consider the appeal onmerits and pass appropriate orders. (iii) Until such time, further proceedings for recovery shallbe kept in abeyance. Rp21/10/2016 Sd/- A.M. SHAFFIQUE, JUDGE //True Copy// P.S to Judge