Wp(C)/34294/2019 Of Kay Kay Enterprises v. The Income Tax Officer, Ward 2(2)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941 WP(C).No.34294 OF 2019(J) PETITIONER/S: KAY KAY ENTERPRISESX/78,KUNNATH COMPLEX,VARAVOOR, WADAKKANCHERY,THRISSUR,REPRESENTED BY ITS MANAGING PARTNER,SRI.K.K.MOIDEEN. BY ADVS.SRI.N.MURALEEDHARAN NAIRSMT.K.HYMAVATHY RESPONDENT/S: 1THE INCOME TAX OFFICER, WARD 2(2)WARD 2(2),INCOME TAX DEPARTMENT, THRISSUR-680001. SC SRI.JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON16.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner is an assessee under the Income Tax Act, 1961 on thefiles of the 1[st] respondent. Against Ext.P1 assessment order, petitioner hadpreferred Ext.P3 appeal before the 2[nd] respondent. Along with the appeal, thepetitioner had also preferred Ext.P4 stay petition. The 2[nd] respondent has nowpassed Ext.P5 order on the stay petition directing the petitioner to pay 20% ofthe amount as a condition for the grant of stay against recovery of the balanceamounts confirmed against the petitioner vide Ext.P1 assessment order. 2. In the writ petition, the petitioner impugns the said conditional orderof stay, inter alia, on the ground that the 2[nd] respondent had not exercised hisdiscretion validly while passing the said order. 3. I have heard the learned counsel for the petitioner and also thelearned Government Pleader for the respondents. On a consideration of the facts and circumstances of the case andsubmissions made across the bar, I dispose the writ petition with the followingdirections:- (i) In Ext.P5 order, the 2[nd] respondent doesnot state reasons as to why the petitioner wasrequired to deposit the amounts as a condition forthe grant of stay. This Court has held in Archana-Agencies v Commercial Tax Officer 2014 (2)KLT 715that an authority considering a stay petition okb is bound to give reasons even while grantingconditional stay. (ii) Ext.P5 order is quashed and the 2[nd]respondent is directed to reconsider the matter andpass fresh orders in the stay petition, within onemonth from the date of receipt of a copy of thisjudgment after hearing the petitioner. (iii) Recovery steps, if any, initiated against thepetitioner shall be kept in abeyance till such time asfresh orders are passed by the 2[nd] respondent asdirected above and communicated to the petitioner. Sd/- A.K.JAYASANKARAN NAMBIARJUDGE //True copy// P.S. to Judge APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY 1ST RESPONDENT FOR THE YEAR 2016-2017 DATED 28.12.2018. EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE DATED 28.12.2018. EXHIBIT P3 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28.01.2019. EXHIBIT P4 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 07.12.2019 EXHIBIT P5 TRUE COPY OF THE STAY ORDER PASSED BY THE2ND RESPONDENT FOR THE YEAR 2016-17 DATED07.11.2019.