Wp(C)/34530/2018 Of Kunnamkulam Co-Operative Urban Bank Ltd v. The Commissioner Of Income Tax Appeals

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940 WP(C).No. 34530 of 2018 PETITIONER/S: KUNNAMKULAM CO-OPERATIVE URBAN BANK LTD NO. 698,KUNNAMKULAM, THRISSUR - 680503,REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT/S: OTHER PRESENT: SC. SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 34530 of 2018 JUDGMENT The petitioner, a Cooperative Bank, suffered an adverse incometax assessment. In appeal, the first respondent imposed aprecondition of the petitioner's depositing 30% of the demand to havethe proceedings stayed before the appeal could be considered. TheBank complains that it has been in loss and it could not comply withthe condition. So it approached the second respondent, who throughExt.P7, rejected the petitioner's request. The authority has held thatsince a parallel authority has already passed an order, it isinappropriate for him to interfere. In that context, assailing both theExts.P5 and P7, the petitioner has filed this writ petition. 2.The Standing Counsel for the Cooperative Bank has takenme through the record and contended that the Bank has beenincurring huge losses and it is almost impossible for it to comply withthe precondition as set out in the Ext.P5. According to him, thedemand is for 18 lakhs rupees, and 30% comes to substantial amount,which given the Bank's financial position, could not be complied with.In this regard, he has drawn my attention to the Ext.P8 judgment of W.P.(C). No. 34530 of 2018 this Court. 3.The Standing Counsel for the Income Tax Departmenthas, however, submitted that there is no method of carrying forwardthe losses. And for this assessment year, the petitioner cannot havethe excuse of the previous losses. 4.As I reckon, this Court has been consistently followingthe policy of not interfering with the discretion exercised by thejudicial and quasi judicial authorities. 5.Indeed, this Court has always been averse to interferingwith the Tribunal's discretion. The law is well settled that unless anyorder of discretion suffers from well recognised legal infirmities—arbitrariness, unreasonableness, or lacking its very source—thecourts at higher échelons would not interfere. Here, the Tribunal hasacted well within its powers. 6.At any rate, the assessee is an institution and its affairsinvolve public interest. So the Court finds mitigating thecircumstances to scale down the rigor of the interim direction. 7.Here, to reiterate, the petitioner is a Cooperative Bank W.P.(C). No. 34530 of 2018 -4- working for the welfare of its members. And admittedly, it has been in losses. I, therefore, hold that if the petitioner pays 20% of the demand, in two months, the first respondent will consider the petitionersappeal, on merits. Sd/- DAMA SESHADRI NAIDU JUDGE das APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE COPY OF THE ASSESSMENT ORDER DATED 16.3.2016.EXHIBIT P2TRUE COPY OF THE DEMAND NOTICE DATED 16.3.2016. EXHIBIT P3TRUE COPY OF THE MEMORANDUM OF APPEAL PREFERRED BEFORE THE COMMISSIONER OF INCOME TAX APPEALS DATED 1.4.2016.EXHIBIT P4TRUE COPY OF THE APPLICATION DATED 1.4.2016.EXHIBIT P5TRUE COPY OF THE INTERIM ORDER DATED 24.5.2017. W.P.(C). No. 34530 of 2018