Wp(C)/9106/2019 Of K.p.shan v. The Principal Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUESDAY ,THE 26TH DAY OF MARCH 2019 / 5TH CHAITHRA, 1941 WP(C).No. 9106 of 2019 PETITIONER/S: K.P.SHANAGED 36 YEARSS/O.PUSHPAN, KILIYANPARAMBIL HOUSE, VELIYANNUR, THRISSUR-680021. BY ADVS.SRI.GEORGE SEBASTIANSRI.ARUN LUCKOSE ABRAHAM OTHER PRESENT: SC SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2019, ALONG WITH WP(C).9123/2019, WP(C).9141/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 9106/2019 & Conn. Case IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUESDAY ,THE 26TH DAY OF MARCH 2019 / 5TH CHAITHRA, 1941 WP(C).No. 9123 of 2019 PETITIONER/S: SHYLA PUSHPANAGED 55 YEARSW/O.PUSHPAN, KILIYANPARAMBIL HOUSE, VELIYANNUR, THRISSUR-680021. BY ADVS.SRI.GEORGE SEBASTIANSRI.ARUN LUCKOSE ABRAHAM RESPONDENT/S: 1THE PRINCIPAL COMMISSIONER OF INCOME TAX,AYAKAR BHAVAN, THRISSUR-680001.AYAKAR BHAVAN, THRISSUR-680001. 2THE JOINT COMMISSIONER OF INCOME TAX,RANGE-2, AYAKAR BHAVAN, THRISSUR-680001.RANGE-2, AYAKAR BHAVAN, THRISSUR-680001. 3THE COMMISSIONER OF INCOME TAX(APPEAL),THRISSUR-680001.THRISSUR-680001. 4THE INCOME TAX OFFICER (TRO AND TECH),OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, SHAKTHAN NAGAR, THRISSUR-680001.OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, SHAKTHAN NAGAR, THRISSUR-680001. 5THE INCOME TAX OFFICER,WARD 2(4), THRISSUR-680001. OTHER PRESENT: SC SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2019, ALONG WITH WP(C).9141/2019, WP(C).9106/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 9106/2019 & Conn. Case -4- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUESDAY ,THE 26TH DAY OF MARCH 2019 / 5TH CHAITHRA, 1941 WP(C).No. 9141 of 2019 PETITIONER/S: K.P.PUSHYAAGED 37 YEARSD/O PUSHPAN, KILIYANPARAMBIL HOUSE, VELIYANNUR, THRISSUR-680 021. BY ADVS.SRI.GEORGE SEBASTIANSRI.ARUN LUCKOSE ABRAHAM RESPONDENT/S: 1THE PRINCIPAL COMMISSIONER OF INCOME TAXAYAKAR BHAVAN, THRISSUR-680 001.AYAKAR BHAVAN, THRISSUR-680 001. 2THE JOINT COMMISSIONER OF INCOME TAXRANGE-2, AYAKAR BHAVAN, THRISSUR-680 001.RANGE-2, AYAKAR BHAVAN, THRISSUR-680 001. 3THE COMMISSIONER OF INCOME TAX (APPEAL)THRISSUR-680 001.THRISSUR-680 001. 4THE INCOME TAX OFFICER (TRO AND TECH)OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, SHAKTHAN NAGAR, THRISSUR -680 001.OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, SHAKTHAN NAGAR, THRISSUR -680 001. 5THE INCOME TAX OFFICERWARD 2(4), THRISSUR-680 001. OTHER PRESENT: SC SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2019, ALONG WITH WP(C).9123/2019, WP(C).9106/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 9106/2019 & Conn. Case -6- J U D G M E N T [ WP(C) 9106/2019 ,WP(C).9123/2019 ,WP(C).9141/2019 ] Heard Sri George Sebastian, the counsel for the petitioner, and Sri Jose Joseph, the learned Standing Counsel for theIncome Tax Department. 2.The petitioners in these cases pray for mandamus directing the third respondent to consider and dispose of Ext.P2appeal filed against the assessment order dated 03.12.2018 andalso Ext.P7 stay petition expeditiously. The petitioner seeksstay of proceedings pursuant to Ext.P1, including Ext.P8, till theappeal (Ext.P2) and stay petition (Ext.P7) are considered anddisposed of by the third respondent. 3.The learned counsel for the petitioner submits that the appeal has been filed within the period of limitation and -7- stay petition is also moved by making out prima facie grounds [ WP(C) 9106/2019 ,WP(C).9123/2019 ,WP(C).9141/2019 ] Heard Sri George Sebastian, the counsel for the petitioner, and Sri Jose Joseph, the learned Standing Counsel for theIncome Tax Department. 2.The petitioners in these cases pray for mandamus directing the third respondent to consider and dispose of Ext.P2appeal filed against the assessment order dated 03.12.2018 andalso Ext.P7 stay petition expeditiously. The petitioner seeksstay of proceedings pursuant to Ext.P1, including Ext.P8, till theappeal (Ext.P2) and stay petition (Ext.P7) are considered anddisposed of by the third respondent. 3.The learned counsel for the petitioner submits that the appeal has been filed within the period of limitation and -7- stay petition is also moved by making out prima facie grounds for granting stay of assessment order dated 03.12.2018. Thenon-consideration of stay petition firstly is without just reasonand secondly when the application for stay is pending,addressing Ext.P8 to the State Bank of India calling upon theBank to credit the Central Government account, the amountthat may be deposited to the credit of assessee's account. It isfurther contended that there are exceptionally strong groundsfor canvasing before the appellate authority in Ext.P2 appealand the recovery if is completed, the assessee will sufferfinancial loss and irreparable injury. The counsel prays for adirection to immediately dispose of the stay petition and alsoappeal within a reasonable period of time. 4. Sri Jose Joseph, the Standing Counsel for the respondents submits that the assessing officer has put thepetitioner on the condition of depositing 20% to work out the W.P.(C) No. 9106/2019 & Conn. Case -8- remedy of appeal in the case on hand. The assessee has not co-operated with the assessing officer while the assessment wasundertaken and the assessment order passed. According tohim, prima facie as things stand at present the order does notsuffer from any infirmity and prays for dismissing this writpetition. 5. The counsel, however, does not object to directing disposal of the stay petition at the earliest; however he insistsupon the condition to deposit 20%, and that the petitioner canavail the benefit of the stay and the appeal could also bedisposed of expeditiously. 6.The writ prayer is substantially against the inactionof the appellate authority/ the third respondent in disposing ofExt.P7 stay petition and Ext.P2 appeal. After perusing the orderof assessment and also the condition imposed by the fifthrespondent, I am satisfied that these writ petitions can be W.P.(C) No. 9106/2019 & Conn. Case disposed of by these orders: (a)The third respondent considers and disposes ofExt.P7 stay petition as expeditiously as possible,preferably within two months from the date ofreceipt of the copy of this judgment.Ext.P7 stay petition as expeditiously as possible,preferably within two months from the date ofreceipt of the copy of this judgment. (b)The petitioner is directed to deposit 10% of theamount demanded through Ext.P2 within four weeksfrom today and files proof of payment before thethird respondent to enable the third respondent toconsider the stay application.amount demanded through Ext.P2 within four weeksfrom today and files proof of payment before thethird respondent to enable the third respondent toconsider the stay application. (c)Ext.P2 appeal is also considered and disposed ofexpeditiously, subject to the petitioner complyingwith the other conditions prescribed in law.expeditiously, subject to the petitioner complyingwith the other conditions prescribed in law. (d)Till then there shall be a stay of recovery pursuant toExt.P1 assessment order.Ext.P1 assessment order. Sd/- S.V.BHATTI JUDGE jjj W.P.(C) No. 9106/2019 & Conn. Case -10- APPENDIX OF WP(C) 9106/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 (c)Ext.P2 appeal is also considered and disposed ofexpeditiously, subject to the petitioner complyingwith the other conditions prescribed in law.expeditiously, subject to the petitioner complyingwith the other conditions prescribed in law. (d)Till then there shall be a stay of recovery pursuant toExt.P1 assessment order.Ext.P1 assessment order. Sd/- S.V.BHATTI JUDGE jjj W.P.(C) No. 9106/2019 & Conn. Case -10- APPENDIX OF WP(C) 9106/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE ASSESSMENT ORDER ALONG WITH NOTICE OF DEMAND DATED 3.12.2013 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2A TRUE COPY OF THE STATUTORY APPEAL FILED UNDER SECTION 246A OF THE INCOME TAX ACT, 1961 DATED 2.1.2019 BEFORE THE 3RD RESPONDENT.SECTION 246A OF THE INCOME TAX ACT, 1961 DATED 2.1.2019 BEFORE THE 3RD RESPONDENT. EXHIBIT P3A TRUE COPY OF THE PETITION FOR STAY DATED 2.1.2019 SUBMITTED BEFORE THE 5TH RESPONDENT.2.1.2019 SUBMITTED BEFORE THE 5TH RESPONDENT. EXHIBIT P4A TRUE COPY OF THE COMMUNICATION DATED 17.1.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.17.1.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P5A TRUE COPY OF THE STAY PETITION DATED 29.1.2019 SUBMITTED BEFORE THE 1ST RESPONDENT.SUBMITTED BEFORE THE 1ST RESPONDENT. EXHIBIT P6A TRUE COPY OF THE COMMUNICATION DATED 27.2.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.27.2.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P7A TRUE COPY OF THE PETITION FOR STAY DATED 5.3.2019 FILED BEFORE THE 3RD RESPONDENT.5.3.2019 FILED BEFORE THE 3RD RESPONDENT. EXHIBIT P8 A TRUE COPY OF THE NOTICE DATED 18.3.2019 ISSUED BY THE 5TH RESPONDENT.BY THE 5TH RESPONDENT. W.P.(C) No. 9106/2019 & Conn. Case -11- APPENDIX OF WP(C) 9123/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1A TRUE COPY OF THE ASSESSMENT ORDER ALONG WITH NOTICE OF DEMAND DATED 3.12.2018 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2A TRUE COPY OF THE STATUTORY APPEAL FILED UNDER SECTION 246A OF THE INCOME TAX ACT, 1961 DATED 2.1.2019 BEFORE THE 3RD RESPONDENT.SECTION 246A OF THE INCOME TAX ACT, 1961 DATED 2.1.2019 BEFORE THE 3RD RESPONDENT. EXHIBIT P3A TRUE COPY OF THE PETITION FOR STAY DATED 2.1.2019 SUBMITTED BEFORE THE 5TH RESPONDENT. EXHIBIT P4A TRUE COPY OF THE COMMUNICATION DATED 17.1.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.17.1.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P5 A TRUE COPY OF THE STAY PETITION DATED 29.1.2019 SUBMITTED BEFORE THE 1ST RESPONDENT. EXHIBIT P6A TRUE COPY OF THE COMMUNICATION DATED 27.2.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.27.2.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P7A TRUE COPY OF THE PETITION FOR STAY DATED 5.3.2019 FILED BEFORE THE 3RD RESPONDENT. EXHIBIT P8 A TRUE COPY OF THE NOTICE DATED 18.3.2019 ISSUED BY THE 5TH RESPONDENT. W.P.(C) No. 9106/2019 & Conn. Case APPENDIX OF WP(C) 9141/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1A TRUE COPY OF THE ASSSESSMMENT ORDER ALONG WITH NOTICE OF DEMAND DATED 3.12.2018 ISSUED BY THE 5TH RESPONDENT.WITH NOTICE OF DEMAND DATED 3.12.2018 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2A TRUE COPY OF THE STATUTORY APPEAL FILED UNDER SECTION 246A OF THE INCOME TAX ACT, 1961 DATED 2.1.2019 BEFORE TEH 3RD RESPONDENT.SECTION 246A OF THE INCOME TAX ACT, 1961 DATED 2.1.2019 BEFORE TEH 3RD RESPONDENT. EXHIBIT P3A TRUE COPY OF THE PETITION FOR STAY DATED 2.1.2019 SUBMITTED BEFORE THE 5TH RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION DATED 17.1.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.17.1.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P5 A TRUE COPY OF THE STAY PETITION DATED 29.1.2019 SUBMITTED BEFORE THE IST RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 27.2.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.27.2.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P2A TRUE COPY OF THE STATUTORY APPEAL FILED UNDER SECTION 246A OF THE INCOME TAX ACT, 1961 DATED 2.1.2019 BEFORE TEH 3RD RESPONDENT.SECTION 246A OF THE INCOME TAX ACT, 1961 DATED 2.1.2019 BEFORE TEH 3RD RESPONDENT. EXHIBIT P3A TRUE COPY OF THE PETITION FOR STAY DATED 2.1.2019 SUBMITTED BEFORE THE 5TH RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION DATED 17.1.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.17.1.2019 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER. EXHIBIT P5 A TRUE COPY OF THE STAY PETITION DATED 29.1.2019 SUBMITTED BEFORE THE IST RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION DATED 27.2.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.27.2.2019 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. EXHIBIT P7A TRUE COPY OF THE PETITION FOR STAY DATED 5.3.2019 FILED BEFORE THE 3RD RESPONDENT.5.3.2019 FILED BEFORE THE 3RD RESPONDENT. EXHIBIT P8 A TRUE COPY OF THE NOTICE DATED 18.3.2019 ISSUED BY THE 5TH RESPONDENT.BY THE 5TH RESPONDENT.