Wp(C)/6769/2020 Of The Kollad Service Co-Operative Bank Ltd v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941 WP(C).No.6769 OF 2020(U) PETITIONER: THE KOLLAD SERVICE CO-OPERATIVE BANK LTD.NO.1830,KOLLAD.P.O, PIN-686 004 REPRESENTED BY ITS SECRETARY. BY ADVS.SRI.C.A.JOJOSRI.MATHEWS JOSEPH RESPONDENTS: R1-2 BY ADV. SRI.P.K.RAVINDRANATHA MENON (SR.)R1-2 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T Petitioner, a Co-operative Bank Ltd has approached this Court under Article 226 of the Constitution of India,for issuance of writ in the nature of certiorari quashingExt. P2 demand notice under Section 156 dated21.12.2019 issued by the 1[st] respondent. 2.The learned counsel appearing on behalf of thepetitioner submits that against the assessment order, thepetitioner preferred Ext. P3 appeal dated 16.01.2020.Another demand notice dated 30.01.2020, for seeking thestay of the demand by deposit of 20%, was issued videExt. P4. Thereafter, vide Ext. P5 dated 04.03.2020Income Tax Department has realised the amount byissuing garnishee notice to the banker of the petitioner.By way of additional documents, it is evident that despitehaving filed the rectification application, there was anerror apparent on record, owing to non-adherence of theclearance of the directions contained in the circular dated21.08.1969 and 05.07.2013 with regard to the stay of the recovery till the pendency of the appeal realizing it to bean error apparant on record preferred a rectificationapplication Ext. P8 dated 29.01.2020. The petitioner hadalso preferred stay application along with appeal beforethe 1[st] respondent, which has been rejected vide Ext. P7dated 24.01.2020. 3.The petitioner preferred a rectificationapplication before the 1[st] respondent on 29.01.2020 andthe same has been rejected vide Ext. P9 dated30.01.2020. Another rectification application was filed asExt. P11, which has been dismissed by Ext. P2 withoutassigning any reasons. Therefore, the order being withoutjurisdiction is liable to be quashed. 4.Per contra, learned counsel for the petitionersubmits that the bank has already realised theoutstanding amount a sum of Rs. 13 lakhs and odd videExt. P5. Petitioner is not justified in moving perpetualapplications for rectification and there was no errorapparent on record. The demand of 20% was inaccordance with the prevailing instructions and therefore, the old instructions were not of having any binding effect. The judgment of this court in not imposing a condition of20% for grant of stay is not in rem but in persona andurges this Court for dismissal of this writ petition. 5.Having heard the learned counsel for the parties and apprised the paper book, the grievances of thepetitioner at this stage of the matter in view of the factsas narrated above, can be vindicated by the issuance ofdirection to the 2[nd] respondent to decide the appealExt. P3 dated 16.01.2020 as expeditiously as possiblewithin a period of 45 days from the date of production ofcertified copy of this order. In case the petitionersucceeds in Ext. P3 appeal the amount so deposited, asunder taken by Mr. Jose Joseph, would be refunded. Ifotherwise, the petitioner would have a grievance to seekthe litigation in accordance with law. With these observations and directions, the aboveWrit Petition (Civil) will stand dismissed. (Sd/-) AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1A TRUE COPY OF THE ASSESSMENT ORDER FOR AY 2017-18 DATED 21.12.2019 ISSUED BY THE FIRST RESPONDENT.2017-18 DATED 21.12.2019 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P2A TRUE COPY OF THE DEMAND NOTICE U/S 156 DATED 21.12.2019 ISSUED BY THE FIRST RESPONDENT.DATED 21.12.2019 ISSUED BY THE FIRST RESPONDENT. With these observations and directions, the aboveWrit Petition (Civil) will stand dismissed. (Sd/-) AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1A TRUE COPY OF THE ASSESSMENT ORDER FOR AY 2017-18 DATED 21.12.2019 ISSUED BY THE FIRST RESPONDENT.2017-18 DATED 21.12.2019 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P2A TRUE COPY OF THE DEMAND NOTICE U/S 156 DATED 21.12.2019 ISSUED BY THE FIRST RESPONDENT.DATED 21.12.2019 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P3A TRUE COPY OF THE APPEAL FOR AY 2017-18 BEFORE THE 2ND RESPONDENT DATED 16.01.2020.BEFORE THE 2ND RESPONDENT DATED 16.01.2020. EXHIBIT P4A TRUE COPY OF THE DEMAND NOTICE FOR 20% DATED 30.01.2020 ISSUED BY THE FIRST RESPONDENT.DATED 30.01.2020 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P5A TRUE COPY OF THE NOTICE U/S 226(3) FOR AY2017-18 DATED 04.03.2020 ISSUED BY THE 1ST RESPONDENT.2017-18 DATED 04.03.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6A TRUE COPY OF THE STAY PETITION BEFORE THE1ST RESPONDENT DATED 16.01.2020.1ST RESPONDENT DATED 16.01.2020. EXHIBIT P7A TRUE COPY OF THE NOTICE OF REJECTION OF STAY PETITION BY THE 1ST RESPONDENT DATED 24.01.2020.STAY PETITION BY THE 1ST RESPONDENT DATED 24.01.2020. EXHIBIT P8A TRUE COPY OF THE RECTIFICATION PETITION FILED BEFORE THE 1ST RESPONDENT DATED 29.01.2020.FILED BEFORE THE 1ST RESPONDENT DATED 29.01.2020. EXHIBIT P9A TRUE COPY OF THE NOTICE OF REJECTION OF STAY PETITION BY THE 1ST RESPONDENT DATED 30.01.2020.STAY PETITION BY THE 1ST RESPONDENT DATED 30.01.2020. EXHIBIT P10A TRUE COPY OF THE ORDER OF REJECTION OF THE RECTIFICATION PETITION BY THE 1ST RESPONDENT DATED 06.02.2020.THE RECTIFICATION PETITION BY THE 1ST RESPONDENT DATED 06.02.2020. EXHIBIT P11A TRUE COPY OF THE SECOND RECTIFICATION PETITION FILED BEFORE THE 1ST RESPONDENT DATED 20.02.2020.PETITION FILED BEFORE THE 1ST RESPONDENT DATED 20.02.2020. EXHIBIT P12A TRUE COPY OF THE LETTER ISSUED BY 1ST RESPONDENT DATED 04.03.2020.RESPONDENT DATED 04.03.2020. RESPONDENTS'S/S EXHIBITS: EXHIBIT R2(A) TRUE COPY OF THE ORDER DATED 30.01.2020.EXHIBIT R2(B) TRUE COPY OF THE PROCEEDINGS DATED 06.02.2020. EXHIBIT R2(C) TRUE COPY OF THE LETTER DATED 11.02.2020. // True Copy // PA To Judge