Wp(C)/33765/2015 Of Elamkulam Service Co-Operative Bank Ltd v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 6TH DAY OF NOVEMBER 2015/15TH KARTHIKA, 1937 WP(C).No. 33765 of 2015 (U) ---------------------------- PETITIONER(S): -------------------------- ELAMMKULAM SERVICE CO-OPERATIVE BANK LIMITED, KUNNAKKAVU P.O., MALAPPURAM DISTRICT-679 340, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.O.D.SIVADAS. RESPONDENT(S): ---------------------------- 1. THE COMMISSIONER OF INCOME TAX (APPEALS), AYAKAR BHAVAN, KOZHIKODE-673 001. AYAKAR BHAVAN, KOZHIKODE-673 001. 2. THE INCOME TAX OFFICER, WARD (4), TIRUR-676 101. BY ADV. SRI.K.M.V.PANDALAI, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. WP(C).No. 33765 of 2015 (U) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1COPY OF THE ASSESSMENT ORDER DATED 02/03/2015 ISSUED BYTHE 2ND RESPONDENT.THE 2ND RESPONDENT. EXT.P2COPY OF THE APPEAL DATED 30/03/2015 FILED BEFORE THE 1ST RESPONDENT.1ST RESPONDENT. EXT.P3COPY OF THE STAY PETITION DATED 08/04/2015 FILED BEFORE THE 1ST RESPONDENT.1ST RESPONDENT. EXT.P4COPY OF THE STAY ORDER DATED 23/08/2014 ISSUED BY THISHONOURABLE COURT I.A. NO.2573/2014 IN ITA NO.198/2014.HONOURABLE COURT I.A. NO.2573/2014 IN ITA NO.198/2014. EXT.P5COPY OF THE ORDER DATED 06/10/2015 ISSUED BY THE 1ST RESPONDENT.1ST RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE A.K.JAYASANKARAN NAMBIAR, J. =========================================== W.P.(C). No. 33765 of 2015 =====================================================Dated this the 6[th] day of November, 2015 JUDGMENT The challenge in the writ petition is against Ext.P5 orderpassed by the 1[st] respondent, in an appeal preferred by thepetitioner against an assessment order under the Income Tax Act.The case of the petitioner in the writ petition is essentially that,while passing Ext.P5 order, the 1[st] respondent did not exercise itsdiscretion validly. It is submitted that the main issue involved inthe appeal is also the subject matter of an ITA before this Court, inwhich this Court had granted a complete stay against recovery ofamounts confirmed against the petitioner during the pendency ofthe appeal. The learned counsel for the petitioner would submitthat the ITA has since been heard and it has been reserved forjudgment. It is in the meanwhile, that Ext.P5 order has beenpassed in appeals preferred by the petitioner on the same issue. 2.On a consideration of the facts and circumstances of thecase as also the submissions made across the bar, I find that inExt.P5 order, the 1[st] respondent has directed the petitioner todeposit the entire amount confirmed against him by the assessmentorder, as a condition for hearing the appeal. Inasmuch as the issueinvolved in the appeal preferred by the petitioner is pending W.P.(C). No. 33765 of 2015 consideration before this Court in ITAs preferred by the petitionerand similarly situated persons, and this Court has granted acomplete stay against recovery, pending disposal of the IncomeTax Appeal, I quash Ext.P5 order and direct the 1[st] respondent toconsider and pass orders in Ext.P2 appeal preferred by thepetitioner, within a period of three months, after hearing thepetitioner. I make it clear that, pending disposal of the appeal, therecovery steps, if any, initiated against the petitioner for recoveryof amounts confirmed against the petitioner by Ext.P1 assessmentorder, shall be kept in abeyance. The petitioner shall produce acopy of the writ petition, together with a copy of this judgmentbefore the 1[st] respondent for further action. The writ petition is disposed as above. Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE