Wp(C)/8969/2019 Of Abdul Jabbar v. The Commissioner Of Income Tax(Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 14TH DAY OF JUNE 2019 / 24TH JYAISHTA, 1941 WP(C).No.8969 of 2019 PETITIONER/S: ABDUL JABBAR,AGED 66 YEARSS/O.ABDULKHADER, DOOR NO.22/306, KOLLIYIL HOUSE, PAY BAZAR, ERIYAD, THRISSUR-680660. BY ADVS.SRI.P.B.SAHASRANAMANSRI.T.S.HARIKUMAR RESPONDENT/S: 1THE COMMISSIONER OF INCOME TAX(APPEALS), OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS), 3RD FLOOR, AAYKARA BHAVAN, THRISSUR-680001. 2THE INCOME TAX OFFICER,WARD 2(2), RANGE 2, THRISSUR-680001. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Heard Sri.P.B.Sahasranaman, the learned counsel for thepetitioner and Sri.Jose Joseph, the learned Standing Counsel. 2. Petitioner challenges Ext.P4 order of stay granted by the 1[st] respondent. The counsel for the petitioner contends that in thepeculiar circumstances of this case imposing condition of depositing40 % of the demand in two equal instalments amounts to arbitraryand illegal exercise of jurisdiction and contrary to the discretionconferred on the 1[st ]respondent. According to him the petitioner has,fairly good chances to succeed in the appeal and therefore to provethe bonafides the petitioner is prepared to give immovable propertysecurity for the tax demanded by the 2[nd] respondent. He prays forsetting aside the condition and seeks direction for expeditiousdisposal of appeal. 3. Sri.Jose Joseph, opposes the writ prayer by contending thatthe 1[st] respondent exercised the discretion and granted stay pendingappeal. The condition to deposit 40% firstly is not on the higher sideand secondly instalments are also granted. According to him, thedepartment doest not accept movable property security in lieu of depositing 40% imposed through Ext.P4 order. He prays for dismissingthe writ petition. 4. The submissions made by the counsel are noted and primafacie this Court is of the view that the request of the petitioner tofurnish immovable property in compliance with the depositing 40% isuntenable and therefore cannot be considered much less a directioncould be issued to respondents to receive immovable propertysecurity towards compliance with 40% condition imposed in theconditional stay order. The other objection that the 40% condition isalso onerous is not fully correct. The appellate authority to theextent required, as it appears from Ext.P4 examined the case andexercised of the discretion. In normal circumstances this Court inexercise of its jurisdiction under Article 226 may not interdict theorders passed by exercising discretion and power of the authority,unless the admissible legal grounds are made out in this behalf.However, in the case on hand, no special reason is assigned for 40%deposit and instead of 20% of demand which is a norm mostly lookedat pending appeal. Though this Court shall not be understood assubstituting its discretion for the power already exercised in the 1[st]respondent, to meet the ends of justice and in the circumstances of this case condition of 40% imposed by Ext.P4 is modified as 30%, firstinstalment payable on or before 15.07.2019 and 2[nd] instalment payableon or before 15.08.2019. Subject to complying with the condition thepetitioner is entitled to enjoy the stay of order under appeal before 1[st]respondent. The petitioner if commits default of any instalment, it ismade clear without reference to court the stay granted by this orderand Ext.P4 shall stand vacated. Sd/- S.V.BHATTI JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE PHOTOSTAT COPY OF THE ORDER OF ASSESSMENT PASSED BY THE 2ND RESPONDENT AND THE NOTICE OF DEMAND, DATED 23.09.2017. EXHIBIT P2TRUE PHOTOSTAT COPY OF THE APPEAL PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 12.10.2017. this case condition of 40% imposed by Ext.P4 is modified as 30%, firstinstalment payable on or before 15.07.2019 and 2[nd] instalment payableon or before 15.08.2019. Subject to complying with the condition thepetitioner is entitled to enjoy the stay of order under appeal before 1[st]respondent. The petitioner if commits default of any instalment, it ismade clear without reference to court the stay granted by this orderand Ext.P4 shall stand vacated. Sd/- S.V.BHATTI JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1TRUE PHOTOSTAT COPY OF THE ORDER OF ASSESSMENT PASSED BY THE 2ND RESPONDENT AND THE NOTICE OF DEMAND, DATED 23.09.2017. EXHIBIT P2TRUE PHOTOSTAT COPY OF THE APPEAL PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 12.10.2017. EXHIBIT P3TRUE PHOTOSTAT COPY OF THE STAY APPLICATION PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 12.10.2017. EXHIBIT P4TRUE PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT IN THE STAY PETITION IN ITA-141/17-18, DATED 27.02.2019. RESPONDENT'S/S EXHIBITS: NIL //TRUE COPY// Sd/- PA TO JUDGE