Wp(C)/4728/2019 Of V.shareef v. Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940 WP(C).No. 4728 of 2019 PETITIONER/S: V.SHAREEF,EXCEL PLAZA, KODAMPUZHA ROADPETTA, FEROKE, CALICUT-673631. BY ADVS.SRI.PREMJIT NAGENDRANSRI.P.RAGHUNATH RESPONDENT/S: 1DEPUTY COMMISSIONER OF INCOME TAXCENTRAL CIRCLE-2, KOZHIKODE-673001.CENTRAL CIRCLE-2, KOZHIKODE-673001. 2COMMISSIONER OF INCOME TAX (APPEALS) IIIKOCHI-682036.KOCHI-682036. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT As seen from the Exts.P1 to P8 the petitioner challenged theassessment orders for the assessment years 2008-2009 to 2014-2015.The appellate authority passed the Ext.P24 conditional order in thestay petition. Assailing the Ext.P24 the petitioner has filed this WritPetition. 2.The learned counsel for the petitioner has strenuouslycontended that the Ext.P24 cannot be termed 'an order'. It is a merestatement or directive from the authority that the petitioner shoulddeposit 20% of the demand to have the recovery proceedings stayedand to have the appeal heard on merits. In this context, the learnedcounsel strenuously contends that though the appellate authority has adiscretion to stay the proceedings conditionally, the discretion must beexercised in the judicially varifyable manner and that requires anorder impugned with reasons. He also reminds the Court that time andtime again the Courts have held that any judicial directive which isnon-speaking cannot be sustained. 3.The learned Standing Counsel, on the other hand, submitted that the appellate authority has a discretion to pass conditional orders. He has also submitted that the authority has perhaps been guided bythe Department Circulars in force.the Department Circulars in force. 4.Heard the learned counsel for the petitioner and also thelearned Government Pleader for the respondents. 5.Ext.P24 order, cryptic as it is, reads as follows: “xxxxxxx With respect to your above request, this is toinform you that stay of demand in your case can only begranted if you have deposited 20% of the total outstandingdemand. In case you have paid the aforesaid demands, therecovery proceedings for the aforesaid demands are to bestayed till the disposal of your appeals before theundersigned. xxxxxxx” 6.As contended by the learned counsel for the petitioner, theappellate authority may have exercised its discretion but the mannerof that exercise has not been spelt out in the Ext.P24. No doubt, aninterim order, especially in the nature of a stay order, does not requiredetailed reasoning for adjudication. At the same time, the order mustspell out the authority's prima facie opinion of the matter. And that islacking here: The circular, the Standing Counsel has relied on, asproduced now before the Court, does not seem to bind the appellate authority, though it binds at the lower echelons. Under these circumstances, I set aside the Ext.P24 and remandthe matter to the appellate authority for fresh consideration of the staypetition. At any rate, it is left open for the appellate authority either topass orders after hearing the petitioner or dispose of the appeal itselfas per its convenience. Until the appellate authority acts in eitherway, the Department will defer coercive steps. Sd/- sd DAMA SESHADRI NAIDUJUDGE APPENDIX OF WP(C) 4728/2019 PETITIONER'S/S EXHIBITS:EXHIBIT P1EXHIBIT P2EXHIBIT P3EXHIBIT P4EXHIBIT P5EXHIBIT P6EXHIBIT P7EXHIBIT P8EXHIBIT P9EXHIBIT P10EXHIBIT P11EXHIBIT P12EXHIBIT P13EXHIBIT P14EXHIBIT P15EXHIBIT P16EXHIBIT P17EXHIBIT P18EXHIBIT P19EXHIBIT P20EXHIBIT P21EXHIBIT P22 authority, though it binds at the lower echelons. Under these circumstances, I set aside the Ext.P24 and remandthe matter to the appellate authority for fresh consideration of the staypetition. At any rate, it is left open for the appellate authority either topass orders after hearing the petitioner or dispose of the appeal itselfas per its convenience. Until the appellate authority acts in eitherway, the Department will defer coercive steps. Sd/- sd DAMA SESHADRI NAIDUJUDGE APPENDIX OF WP(C) 4728/2019 PETITIONER'S/S EXHIBITS:EXHIBIT P1EXHIBIT P2EXHIBIT P3EXHIBIT P4EXHIBIT P5EXHIBIT P6EXHIBIT P7EXHIBIT P8EXHIBIT P9EXHIBIT P10EXHIBIT P11EXHIBIT P12EXHIBIT P13EXHIBIT P14EXHIBIT P15EXHIBIT P16EXHIBIT P17EXHIBIT P18EXHIBIT P19EXHIBIT P20EXHIBIT P21EXHIBIT P22 COPY OF ASSESSMENT ORDER FOR 2008-09.COPY OF DEMAND NOTICE FOR 2008-09.COPY OF DEMAND NOTICE FOR 2009-10.COPY OF DEMAND NOTICE FOR 2010-11.COPY OF DEMAND NOTICE FOR 2011-12COPY OF DEMAND NOTICE FOR 2012-13.COPY OF DEMAND NOTICE FOR 2013-14.COPY OF DEMAND NOTICE FOR 2014-15.APPEAL AGAINST ASSESSMENT FOR 2008-09.APPEAL AGAINST ASSESSMENT FOR 2009-10.APPEAL AGAINST ASSESSMENT FOR 2010-11.APPEAL AGAINST ASSESSMENT FOR 2011-12.APPEAL AGAINST ASSESSMENT FOR 2012-13.APPEAL AGAINST ASSESSMENT FOR 2013-14.APPEAL AGAINST ASSESSMENT FOR 2014-15.COPY OF STAY PETITION FOR 2008-09.COPY OF STAY PETITION FOR 2009-10.COPY OF STAY PETITION FOR 2010-11.COPY OF STAY PETITION FOR 2011-12.COPY OF STAY PETITION FOR 2012-13.COPY OF STAY PETITION FOR 2013-14.COPY OF STAY PETITION FOR 2014-15. sd