Wp(C)/36664/2022 Of Thrissur District Police Co-Operative Society Ltd v. Additional/Joint/Deputy/Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 16 DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944 WP(C) NO. 36664 OF 2022 PETITIONER: THRISSUR DISTRICT POLICE CO-OPERATIVE SOCIETY LTD.THRISSUR DISTRICT POLICE CO-OPERATIVE SOCIETY LTD.ACP OFFICE THRISSUR P.OTHRISSUR, KERALA, PIN - 680001BY ADVS.ANIL D. NAIRTELMA RAJUEDATHARA VINEETA KRISHNANP.K.BIJUANJANA A. RESPONDENTS: 1ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAXADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAXINCOME TAX OFFICERNATIONAL FACELESS ASSESSMENT CENTRENEW DELHI, PIN - 1100012COMMISSIONER OF INCOME TAXCOMMISSIONER OF INCOME TAXNATIONAL FACELESS APPEAL CENTRENEW DELHI, PIN - 1100013THE INCOME TAX OFFICERTHE INCOME TAX OFFICERWARD - 2(1)AAYKAR BHAVAN, SHAKTHAN THAMPURAN NAGARMUNCIPAL OFFICE ROADTHRISSUR, PIN - 680001 OTHER PRESENT: 0ADV. JOSE JOSEPH (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 16[th] day of November, 2022 The petitioner has approached this Court beingaggrieved by the fact that by Ext.P2 order of the 2[nd] respondent,the stay petition of the petitioner has been decided withoutaffording to the petitioner an opportunity of being heard. It isalso submitted that the 2[nd] respondent has not actually decidedthe stay petition and has directed the assessing officer toconsider the stay petition also keeping in mind the provisions ofthe official memorandum issued by the board regarding the grantof stay pending consideration of appeals. 2.The learned counsel appearing for the petitionerstates that since Ext.P2 order has been issued without affordingto the petitioner an opportunity of hearing and also consideringthe fact that the 2[nd] respondent has not decided the amount to bepaid by the petitioner as a condition for stay, Ext.P2 order isliable to be set aside and the matter is to be remanded to the 2[nd] respondent for consideration of the stay petition afresh. 3.The learned standing counsel appearing for therespondent department refers to Ext.P2 order and points out thatthe contentions raised by the learned counsel for the petitionerare not correct. He points out that the 2[nd] respondent hasconsidered the matter in extenso and has reached a conclusionthat the demands against the petitioner can be stayed pendingconsideration of the appeal on condition that the petitioner remitsan amount equivalent to 20% of the demand after excludingamounts which are claimed to be 'double taxation' and alsoexcluding the amounts relatable to deductions under 80P of theIncome Tax Act, 1961. It is submitted that it is only for thepurposes of calculating the exact amount payable by thepetitioner that the matter has been sent to the assessing officer.It is submitted that there is absolutely nothing wrong in Ext.P2order and the petitioner has no real grievance in the matter. It isalso pointed out that even if the opportunity of oral hearing has W.P. (C) No. 36664 of 2022 not been extended to the petitioner, the 2[nd] respondent hadconsidered the written submissions made by the petitioner whileconsidering the stay petition. W.P. (C) No. 36664 of 2022 not been extended to the petitioner, the 2[nd] respondent hadconsidered the written submissions made by the petitioner whileconsidering the stay petition. 4.Having heard the learned counsel appearing forthe petitioner and the learned standing counsel appearing for therespondent department, I am of the view that there isconsiderable merit in the contentions taken by the learnedcounsel appearing for the respondent department that Ext.P2does not suffer from any vice requiring it to be set aside inexercise of jurisdiction under Article 226 of the Constitution ofIndia. Even if the opportunity of oral hearing has not beenextended to the petitioner it appears that the contentions raisedby the petitioner through written submissions have beenconsidered by the 2[nd] respondent. That apart, the 2[nd] respondenthas not relegated the consideration of the stay petition to theassessing officer as contended by the learned counsel for thepetitioner. The 2[nd] respondent has only directed the assessing officer to calculate the amounts payable in terms of Ext.P2 order. 5.Faced with this situation, the learned counselappearing for the petitioner states that the amount now directedto be paid as a condition for stay is extremely onerous. It issubmitted that the 2[nd] respondent has not properly consideredthe merits of the petitioner's claim in the appeal and if that hadbeen properly considered he would have granted an absolute staywithout imposing any conditions. It is submitted that the taxdemand is only Rs.5 crores and if the petitioner is required to pay20% of approximately Rs.12 crores as a condition for stay, thepetitioner would be put to serious injury, prejudice and hardship. Having regard to the aforesaid submissions, I am of theview that in order to shorten the litigation and to avoid furthercontroversy, the demands against the petitioner can be stayed byimposing conditions. Accordingly, this writ petition will standdisposed of directing that if the petitioner pays a sum of Rs.1.25crores in three equal instalments commencing from 15.12.2022, W.P. (C) No. 36664 of 2022 6 the demands arising out of the assessment order for theassessment year 2016-2017 shall remain stayed pending disposalof the appeal filed against the said assessment order. RMV Sd/- GOPINATH P. JUDGE APPENDIX OF WP(C) 36664/2022 PETITIONER EXHIBITSExhibit P1TRUE COPY OF THE JUDGMENT DATED 1.6.2022 IN W.P. (C)NO.17757 OF 2022 FOR THE A.Y. 2016-17.Exhibit P2TRUE COPY OF THE PROCEEDINGS DATED 27.08.2022 ISSUEDBY THE 2ND RESPONDENT.Exhibit P3TRUE COPY OF NOTICE DATED 30.08.2022 FOR THE A.Y. 2016-17 ISSUED BY THE 3RD RESPONDENT.Exhibit P4TRUE COPY OF THE REPLY DATED 5.9.2022 BEING THE REPLY TO EXHIBIT P3 NOTICEExhibit P5TRUE COPY OF ORDER DATED 3.11.2022 FOR THE A.Y. 2016-17 ISSUED BY THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE