Wp(C)/8559/2020 Of Wilson Mathew ( v. The Income Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 15 DAY OF MARCH 2024 / 25TH PHALGUNA, 1945 WP(C) NO. 8559 OF 2020 PETITIONER: WILSON MATHEW (PAN ),M/S. KAIRALI CABLE VISION, P. O. TALIPARAMBA, KANNUR, PIN - 670 141. BY ADVS. NANDAGOPAL S. KURUP A. KUMAR (SR.)(K/529/1992) GEORGE MECHERIL ADITH KIRAN R.S.(K/003142/2022) A. KUMAR (SR.)(K/529/1992) RESPONDENTS: 1THE INCOME TAX OFFICER,WARD NO.4, KANNUR RANGE, KANNUR, AAYAKAR BHAVAN, KANNOTHUMCHAL, KANNUR-670 005. 2THE COMMISSIONER OF INCOME TAX (APPEALS),KOZHIKODE - 673 001. 3THE TAX RECOVERY OFFICER,AAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE.(SOUGHT TO BE IMPLEADED) BY ADV. SRI. P. R. AJITH KUMAR – SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: GOPINATH P., J. -------------------------- W.P.(C) No. 8559 of 2020 ------------------------- Dated this the 15[th] day of February, 2024 JUDGMENT The petitioner suffered Exhibits P-15 to P-17 orders ofassessment for the assessment years 2011-12 to 2015-16, againstwhich the petitioner filed appeals before the 2[nd] respondent. The 2[nd]respondent issued Exhibit P-28 order on the application for staydirecting that the demands shall be remained stayed on the conditionthat the petitioner remits a total of 15% of the total demands by the15.03.2020. According to the petitioner, though the petitioner madesubstantial payments there was some shortfall leading to a situationwhere the recovery proceedings continued against the petitioner andcertain properties of the petitioner came to be attached (see ExhibitP-32). 2.Sri. A. Kumar, learned Senior Counsel appearing for thepetitioner, instructed by Adv. Nandagopal S. Kurup submits that theattachment of the properties is causing serious prejudice to thepetitioner. It is submitted that the petitioner may now be permittedto remit an amount equivalent to 20% of the demands in respect of each of the assessment orders mentioned in Exhibit P-28 and on thatcondition the attachment over the properties by Exhibit P-32 may bewithdrawn. The learned Standing Counsel appearing for the IncomeTax Department would submit that the proceedings for attachment ofthe properties were taken as the petitioner failed to comply with thecondition imposed on Exhibit P-28 order. It is submitted that thepetitioner was required, in terms of Exhibit P-28 order, to remit anamount equivalent to 15% of the demands by 15.03.2020. It issubmitted that even today, there is an admitted short fall and,therefore, the petitioner is not entitled to any relief from this Court. 3.The learned Senior Counsel appearing for the petitioner in replywould submit that even in terms of the Circular issued by the CentralBoard of Direct Taxes, on the petitioner remitting an amountequivalent to 20% of the demands, there is an automatic stay with nofurther condition. It is submitted that in such circumstances, thepetitioner may be permitted to now remit an amount equivalent to20% of the demands as a condition for stay. 4.Having heard the learned Senior Counsel appearing for thepetitioner and the learned Standing Counsel appearing for the IncomeTax Department, I am of the opinion that this writ petition can be disposed of directing that on the petitioner remitting 20% of thedemands raised against the petitioner in respect of the assessmentorders for assessment years 2011-12 to 2015-16 (mentioned in ExhibitP-28 order) the orders attaching the properties of the petitioner shallbe withdrawn. I am inclined to grant this relief to the petitionertaking into consideration the fact that in terms of the Circulars issuedby the Central Board of Direct Taxes, if the petitioner remits a sumequivalent to 20% of the demands, there will be an automatic stay ofrecovery pending disposal of the appeal. 4.Having heard the learned Senior Counsel appearing for thepetitioner and the learned Standing Counsel appearing for the IncomeTax Department, I am of the opinion that this writ petition can be disposed of directing that on the petitioner remitting 20% of thedemands raised against the petitioner in respect of the assessmentorders for assessment years 2011-12 to 2015-16 (mentioned in ExhibitP-28 order) the orders attaching the properties of the petitioner shallbe withdrawn. I am inclined to grant this relief to the petitionertaking into consideration the fact that in terms of the Circulars issuedby the Central Board of Direct Taxes, if the petitioner remits a sumequivalent to 20% of the demands, there will be an automatic stay ofrecovery pending disposal of the appeal. In the light of the above, this writ petition will stand disposed ofdirecting that on the petitioner remitting an amount equivalent to20% of the amounts determined as payable by the petitioner for theassessment years 2011-12 to 2015-16 after giving credit to theamounts already paid, the attachment orders against the immovableproperties of the petitioner will stand withdrawn by the Tax RecoveryOfficer. The benefit of this order shall be available to the petitioneronly if he remits the amounts on or before 15.04.2024. Sd/- GOPINATH P. JUDGE APPENDIX OF WP(C) 8559/2020 PETITIONER’S EXHIBITS EXHIBIT P1TRUE COPY OF THE SUMMONS AND LIST OF DOCUMENTSSEIZED BY THE INSPECTION TEAM HEADED BY THEFIRST RESPONDENT ON 16.03.2015SEIZED BY THE INSPECTION TEAM HEADED BY THEFIRST RESPONDENT ON 16.03.2015 EXHIBIT P2TRUE COPY OF OBJECTIONS FILED ON 06.10.2016 BYTHE PETITIONER TO THE NOTICE FOR RE-OPENING OFTHE ASSESSMENTTHE PETITIONER TO THE NOTICE FOR RE-OPENING OFTHE ASSESSMENT EXHIBIT P3TRUE COPY OF THE REPLY DATED 24.12.2016 FILEDBY THE PETITIONER FOR THE YEAR 2011-12BY THE PETITIONER FOR THE YEAR 2011-12 EXHIBIT P4TRUE COPY OF THE ASSESSMENT ORDER DATED29.12.2016 IN RESPECT OF THE ASSESSMENT YEAR2011-1229.12.2016 IN RESPECT OF THE ASSESSMENT YEAR2011-12 EXHIBIT P5TRUE COPY OF THE RELEVANT PAGES OF THE APPEALMEMORANDUM FOR THE ASSESSMENT YEAR 2011-12MEMORANDUM FOR THE ASSESSMENT YEAR 2011-12 EXHIBIT P6TRUE COPY OF THE RELEVANT PAGES OF THE APPEALMEMORANDUM FOR THE ASSESSMENT YEAR 2012-13MEMORANDUM FOR THE ASSESSMENT YEAR 2012-13 EXHIBIT P7TRUE COPY OF THE RELEVANT PAGES OF THE APPEALMEMORANDUM FOR THE ASSESSMENT YEAR 2013-14MEMORANDUM FOR THE ASSESSMENT YEAR 2013-14 EXHIBIT P8TRUE COPY OF THE RELEVANT PAGES OF THE APPEALMEMORANDUM FOR THE ASSESSMENT YEAR 2014-15MEMORANDUM FOR THE ASSESSMENT YEAR 2014-15 EXHIBIT P9TRUE COPY OF THE RELEVANT PAGES OF THE APPEALMEMORANDUM FOR THE ASSESSMENT YEAR 2015-16MEMORANDUM FOR THE ASSESSMENT YEAR 2015-16 EXHIBIT P10TRUE COPY OF E-FILING ACKNOWLEDGMENT RECEIPTDATED 26.1.2017 FOR THE YEAR 2011DATED 26.1.2017 FOR THE YEAR 2011 EXHIBIT P11TRUE COPY OF E-FILING ACKNOWLEDGMENT RECEIPTDATED 26.1.2017 FOR THE YEAR 2012DATED 26.1.2017 FOR THE YEAR 2012 EXHIBIT P12TRUE COPY OF E-FILING ACKNOWLEDGMENT RECEIPTDATED 27.1.2017 FOR THE YEAR 2013DATED 27.1.2017 FOR THE YEAR 2013 EXHIBIT P28TRUE COPY OF THE ORDER DATED 27.2.2020 IN ITA11105, 11149, 11151, 101618, 10620/2016-17,2017-1811105, 11149, 11151, 101618, 10620/2016-17,2017-18 EXHIBIT P29TRUE COPY OF THE CHALAN DATED 18.4.2017 FOR RS.1,16,310/-, FOR THE YEAR 2011-121,16,310/-, FOR THE YEAR 2011-12 EXHIBIT P30TRUE COPY OF THE CHALAN DATED 18.4.2017 FORRS.5,31,642/-, FOR THE YEAR 2012-13RS.5,31,642/-, FOR THE YEAR 2012-13 EXHIBIT P31TRUE COPY OF THE CHALAN DATED 18.4.2017 FORRS.3,69,048/- FOR THE YEAR 2013-14RS.3,69,048/- FOR THE YEAR 2013-14 EXHIBIT P32TRUE COPY OF THE ATTACHMENT NOTICE DATED22.02.2024NUMBEREDITBA/COM/F/17/2023-24/1061343758(1) ISSUED BY THE TAX RECOVERYOFFICER, KOZHIKODE22.02.2024NUMBEREDITBA/COM/F/17/2023-24/1061343758(1) ISSUED BY THE TAX RECOVERYOFFICER, KOZHIKODE EXHIBIT P28TRUE COPY OF THE ORDER DATED 27.2.2020 IN ITA11105, 11149, 11151, 101618, 10620/2016-17,2017-1811105, 11149, 11151, 101618, 10620/2016-17,2017-18 EXHIBIT P29TRUE COPY OF THE CHALAN DATED 18.4.2017 FOR RS.1,16,310/-, FOR THE YEAR 2011-121,16,310/-, FOR THE YEAR 2011-12 EXHIBIT P30TRUE COPY OF THE CHALAN DATED 18.4.2017 FORRS.5,31,642/-, FOR THE YEAR 2012-13RS.5,31,642/-, FOR THE YEAR 2012-13 EXHIBIT P31TRUE COPY OF THE CHALAN DATED 18.4.2017 FORRS.3,69,048/- FOR THE YEAR 2013-14RS.3,69,048/- FOR THE YEAR 2013-14 EXHIBIT P32TRUE COPY OF THE ATTACHMENT NOTICE DATED22.02.2024NUMBEREDITBA/COM/F/17/2023-24/1061343758(1) ISSUED BY THE TAX RECOVERYOFFICER, KOZHIKODE22.02.2024NUMBEREDITBA/COM/F/17/2023-24/1061343758(1) ISSUED BY THE TAX RECOVERYOFFICER, KOZHIKODE EXHIBIT P33TRUE COPY OF THE REPRESENTATION DATED08.03.2024 REFERRED BY ME TO THE TAX RECOVERYOFFICER, KOZHIKODE08.03.2024 REFERRED BY ME TO THE TAX RECOVERYOFFICER, KOZHIKODE