Wp(C)/8976/2020 Of The Koliyoor Service Co-Operative Bank Ltd v. The Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942 WP(C).No.8976 OF 2020(V) PETITIONER/S: THE KOLIYOOR SERVICE CO-OPERATIVE BANK LTD.MUTTACAUD, THIRUVANANTHAPURAM - 691 523, REPRESENTED BY ITS SECRETARY RAJASREE INDRADEVI. RESPONDENT/S: BY ADVS.SRI.ANIL D. NAIRSRI.SREEJITH R.NAIRSMT. ARYA ANILSHRI.GOKULRAJ L.SMT.SRI HARINI S.P. THE COMMISSIONER OF INCOME TAX (APPEALS)TRIVANDRUM - 695003. OTHER PRESENT: SRI CHRISTOPHER ABRAHAM SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON27.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Dated this the 27th day of May 2020 The petitioner, an individual assessee under the Income Tax Act has approached this Court under Article 226 of theConstitution of India challenging the order dated 10.03.2020Ext.P5, whereby the interim application filed along with theappeal preferred against the assessment order for theassessment years 2012-13 dated 18.12.2019, has beendisposed of without affording opportunity of hearing subject tothe condition of depositing 20% of demand. 2.Against the assessment order, Ext.P1 dated18.12.2019, pertaining to the assessment year 2012-13,petitioner preferred an appeal and stay application Exts.P2 andP3. The learned counsel appearing on behalf of the petitionersubmits that the assessment order was challenged on variousgrounds taken in the appeal but fact of the matter is that thoughthe petitioner had sought the indulgence of the Commissioner ofIncome Tax for adjournment, despite that in the absence of thepetitioner, the stay application has been disposed of subject tothe condition as noticed above. In support of his submission, he relies upon the Division Bench judgment of this Court in W.ANo.1529 of 2019, whereby it is held that the circular dated31.07.2017 issued by Income Tax Department do not have anybinding effect and there is no such provision in the statute. 3.Issue notice before admission. Sri.ChristopherAbraham accepts notice on behalf of the Income Tax. Hesubmits that the petitioner did not appear before the authoritydealing with the same and no other option but to dispose of thesame, by relying upon the circular, referred above. 4.I have heard the learned counsel for the parties andappraised the paper book. The facts as noticed above are not indispute. Against the assessment order, the appeal and stayapplication have been referred. 5.The Division Bench of this Court after having noticedthe circular, ibid, remanded the matter to the Income TaxAuthority to consider and decide the stay application, inaccordance with law without calling upon the assessee to complywith the condition of deposit of 20% of demanded amount. The direction in the aforementioned judgment is still in force and hasnot been set aside so far. It is intriguing that either the Assessing Authorities while exercising the powers under 226 ofConstitution of India or the Appellate authority, theCommissioner of Income Tax are not adhering to the directionspassed by the division Bench of this Court and have been passingorders of such nature compelling the assessee to approach thisCourt. I request Sri.Christopher Abraham to sensitize theofficers regarding the directions contained in the Division Benchthat the assessees are not unnecessarily compelled to approachthis Court without any fault. This Court is sanguine of the factthat the aforementioned directions henceforth onwards would becomplied with by the authorities in letter and spirit. The orderimpugned leaves no manner of doubt that the stay applicationhas been dismissed in the absence of the assessee orrepresentative with the imposition of condition. In view of what has been noticed, the impugned order Ext.P5 In view of what has been noticed, the impugned order Ext.P5 dated 10.03.2020 is not sustainable and is hereby set aside. Thewrit petition stands allowed. The matter is remitted to theCommissioner of Income Tax to decide the stay application asexpeditiously as possible, in accordance with law after affording anopportunity of hearing to the petitioner and the representative of the Revenue. Let this exercise be undertaken within a period of 45days from the date of receipt of a copy of this judgment. Till suchtime, the demand raised is ordered to be kept in abeyance. It ismade clear that the interim order would remain in force till theadjudication of the stay application. nak Sd/- AMIT RAWAL JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 18.12.2019 FOR THE A.Y. 2012-13. EXHIBIT P2 TRUE COPY OF THE APPEAL FILED BEFORE THE RESPONDENT FOR THE A.Y. 2012-13. EXHIBIT P3 TRUE COPY OF THE STAY PETITION FILED BEFORE THE RESPONDENT FOR THE A.Y. 2012-13. EXHIBIT P4TRUE COPY OF THE ORDER DATED 1.7.2019 IN W.A.NO.1536 OF 2019. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 10.03.2020 ISSUED BY THE RESPONDENT.