Wp(C)/6772/2016 Of The Choice Foundation v. Assistant Commissioner Of Income Tax (Exemption)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937 WP(C).No. 6772 of 2016 (V) --------------------------- PETITIONER(S): -------------------------- THE CHOICE FOUNDATION, CHOICE HOUSE, P.V. SREEDHARAN ROAD, KUMBALAM, KOCHI-682 506, REPRESENTED BY ITS GENERAL MANAGER (FINANCE AND ADMINISTRATION)-XAVIER GREGORY. BY SRI.V.V.ASOKAN, SENIOR ADVOCATE. ADVS. SRI.K.I.MAYANKUTTY MATHER, SRI.R.JAIKRISHNA. RESPONDENT(S): ---------------------------- 1. ASSISTANT COMMISSIONER OF INCOME TAX (EXEMPTION), CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), KERA BHAVAN, KOCHI-682 011. 3. DEPUTY DIRECTOR OF INCOME TAX (EXEMPTION), RANGE IV, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. RANGE IV, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. 4. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI-682 018. BY ADV. SRI.K.M.V.PANDALAI, SC. rs. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:- P1 : TRUE COPY OF THE REASONS FOR INITIATING PROCEEDINGS ISSUED BY 3RD RESPONDENT DATED NIL.3RD RESPONDENT DATED NIL. P2 : TRUE COPY OF THE REASONS FOR INITIATING PROCEEDINGS ISSUED BY 3RD RESPONDENT DATED NIL.3RD RESPONDENT DATED NIL. P3 : TRUE COPY OF THE REPLY FILED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 03-06-2014.THE 3RD RESPONDENT DATED 03-06-2014. P4 : TRUE COPY OF THE REPLY FILED BY THE PETITIONER TO 3RD RESPONDENT DATED 03-06-2014.3RD RESPONDENT DATED 03-06-2014. P5 : TRUE COPY OF THE LETTER ISSUED BY 1ST RESPONDENT TO THE PETITIONER DATED 12-02-2015.PETITIONER DATED 12-02-2015. P6 : TRUE COPY OF THE LETTER ISSUED BY 1ST RESPONDENT TO THE PETITIONER DATED 12-02-2015.PETITIONER DATED 12-02-2015. P7 : TRUE COPY OF THE WRITTEN SUBMISSION FILED BY THE PETITIONER DATED 10-01-2014.DATED 10-01-2014. P8 : TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE RESPONDENTS 1 AND 3 (AY-2010-11) DATED 10-03-2015.RESPONDENTS 1 AND 3 (AY-2010-11) DATED 10-03-2015. P9 : TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE RESPONDENTS 1 AND 3 (AY-2011-12) DATED 15/01/2014.RESPONDENTS 1 AND 3 (AY-2011-12) DATED 15/01/2014. P10 : TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY RESPONDENTS 1 AND 3 (AY-2012-13) DATED 10-03-2015.AND 3 (AY-2012-13) DATED 10-03-2015. P11 : TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE 2ND RESPONDENT (AY 2010-11) DATED 21-04-2015.2ND RESPONDENT (AY 2010-11) DATED 21-04-2015. P12 : TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE 2ND RESPONDENT (AY 2011-12) DATED 18-02-2014.2ND RESPONDENT (AY 2011-12) DATED 18-02-2014. P13 : TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE 2ND RESPONDENT (AY 2012-13) DATED 09-04-2015.2ND RESPONDENT (AY 2012-13) DATED 09-04-2015. P14 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO. 20967/2015 DATED 10-07-2015.WP(C).NO. 20967/2015 DATED 10-07-2015. WP(C).No. 6772 of 2016 (V) P15 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO. 8807/2014 DATED 26-03-2014.WP(C).NO. 8807/2014 DATED 26-03-2014. P16 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO.18533/2015 DATED 22-06-2015.WP(C).NO.18533/2015 DATED 22-06-2015. P17 : TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY 4TH RESPONDENT DATED (AY 2010-11) DATED 06-08-2015.4TH RESPONDENT DATED (AY 2010-11) DATED 06-08-2015. P18 : TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY 4TH RESPONDENT (AY 2011-12) DATED 06-08-2015.4TH RESPONDENT (AY 2011-12) DATED 06-08-2015. P14 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO. 20967/2015 DATED 10-07-2015.WP(C).NO. 20967/2015 DATED 10-07-2015. WP(C).No. 6772 of 2016 (V) P15 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO. 8807/2014 DATED 26-03-2014.WP(C).NO. 8807/2014 DATED 26-03-2014. P16 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO.18533/2015 DATED 22-06-2015.WP(C).NO.18533/2015 DATED 22-06-2015. P17 : TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY 4TH RESPONDENT DATED (AY 2010-11) DATED 06-08-2015.4TH RESPONDENT DATED (AY 2010-11) DATED 06-08-2015. P18 : TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY 4TH RESPONDENT (AY 2011-12) DATED 06-08-2015.4TH RESPONDENT (AY 2011-12) DATED 06-08-2015. P19 : TRUE COPY OF THE RECTIFIED ASSESSMENT ORDER ISSUED BY 4TH RESPONDENT (AY 2012-13) DATED 12-08-2015.4TH RESPONDENT (AY 2012-13) DATED 12-08-2015. P20 : TRUE COPY OF THE CONDITIONAL STAY ORDER ISSUED BY 2ND RESPONDENT (AY 2010-11) DATED 04-12-2015.2ND RESPONDENT (AY 2010-11) DATED 04-12-2015. P20A : TRUE COPY OF THE CONDITIONAL STAY ORDER ISSUED BY 2ND RESPONDENT (AY 2011-12) DATED 04-12-2015.2ND RESPONDENT (AY 2011-12) DATED 04-12-2015. P20B : TRUE COPY OF THE CONDITIONAL STAY ORDER ISSUED BY 2ND RESPONDENT (AY 2012-13) DATED 04-12-2015.2ND RESPONDENT (AY 2012-13) DATED 04-12-2015. P21 : TRUE COPY OF THE DEMAND NOTICE ISSUED BY 3RD RESPONDENT (AY 2010-11) DATED 30-12-2015.(AY 2010-11) DATED 30-12-2015. P21A : TRUE COPY OF THE DEMAND NOTICE ISSUED BY 3RD RESPONDENT (AY 2011-12) DATED 30-12-2015.(AY 2011-12) DATED 30-12-2015. P21B : TRUE COPY OF THE DEMAND NOTICE ISSUED BY 3RD RESPONDENT (AY 2012-13) DATED 30-12-2015.(AY 2012-13) DATED 30-12-2015. P22 : TRUE COPY OF THE HEARING NOTICE ISSUED BY THE 2ND RESPONDENT DATED 05-01-2016.DATED 05-01-2016. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs. A.K.JAYASANKARAN NAMBIAR, J..............................................................W.P.(C).No.6772 Of 2016 .............................................................Dated this the 23[rd] day of February, 2016 J U D G M E N T Against Exts.P8 to P10 assessment orders, petitionerpreferred Exts.P11 to P13 appeals before the 2[nd] respondent.Along with the appeals, the petitioner had also preferred staypetitions. The 2[nd] respondent has now passed Ext.P20 series oforders on the stay petition directing the petitioner to pay 40% ofthe amount as a condition for the grant of stay against recovery ofthe balance amounts confirmed against the petitioner vide Exts.P8to P10 assessment orders. 2. In the writ petition, the petitioner impugns the saidconditional order of stay, inter alia, on the ground that the 2[nd]respondent had not exercised his discretion validly while passingthe said order. 3. I have heard the learned counsel for the petitioner and alsothe learned Government Pleader for the respondents. W.P.(C). No.6772 of 2016 On a consideration of the facts and circumstances of the caseand submissions made across the bar, I dispose the writ petitionwith the following directions:- (i) In Ext.P20 series of orders, the 2[nd]respondent does not state reasons as towhy the petitioner was required to depositthe amounts as a condition for the grant ofstay. This Court has held in Archana-Agencies v Commercial Tax Officer 2014 (2) KLT 715that an authorityconsidering a stay petition is bound to givereasons even while granting conditionalstay. (ii) Ext.P20 series of orders arequashed and the 2[nd] respondent is directedto reconsider the matter and pass freshorders in the stay petition, within onemonth from the date of receipt of a copy ofthis judgment after hearing the petitioner. (iii) Recovery steps, if any, initiatedagainst the petitioner shall be kept inabeyance till such time as fresh orders are W.P.(C). No.6772 of 2016 passed by the 2[nd] respondent as directedabove and communicated to the petitioner. (ii) Ext.P20 series of orders arequashed and the 2[nd] respondent is directedto reconsider the matter and pass freshorders in the stay petition, within onemonth from the date of receipt of a copy ofthis judgment after hearing the petitioner. (iii) Recovery steps, if any, initiatedagainst the petitioner shall be kept inabeyance till such time as fresh orders are W.P.(C). No.6772 of 2016 passed by the 2[nd] respondent as directedabove and communicated to the petitioner. A.K.JAYASANKARAN NAMBIAR JUDGE mns/23.02.16