Wp(C)/9265/2007 Of M/S.stabilix Solutions Pvt.ltd v. The Income Tax Officer, Ward I (1)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR WEDNESDAY, THE 21ST MARCH 2007 / 30TH PHALGUNA 1928 WP(C).No. 9265 of 2007(C) ------------------------------------- PETITIONER: ------------------- M/S.STABILIX SOLUTIONS PVT LTD., 212, 'NILA', TECHNO PARK CAMPUS, KARIAVATTOM, THIRUVANANTHAPURAM- 695 581, REPRESENTED BY ITS DIRECTOR SHRI LYJU ALEXANDER THOMAS. BY ADV. SRI.T.M.SREEDHARAN SRI.V.P.NARAYANAN RESPONDENTS: ----------------------- 1. THE INCOME TAX OFFICER, WARD-1(1), THIRUVANANTHAPURAM. 2. THE COMMISSIONR OF INCOME TAX, AYYAKKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF INCOME TAX(APPEALS) AYAKKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM. BY ADV.SRI.GEORGE K.GEORGE, SC, IT, G.O.I. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/03/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.9265/2007 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1:COPY OF ASSESSMENT ORDER DTD. 29/12/2006 PASSED BY THE FIRST RESPONDENT.THE FIRST RESPONDENT. EXT.P2:COPY OF MEMORANDUM OF APPEAL DTD. 29/01/2007 FILED BY THE PETITIONER TO THE 3RD RESPONDENT.THE PETITIONER TO THE 3RD RESPONDENT. EXT.P3:COPY OF LETTER DTD. 29/01/2007 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT.PETITIONER TO THE FIRST RESPONDENT. EXT.P4:COPY OF REPLY DTD. 1/03/2007 ISSUED BY THE 1STRESPONDENT.RESPONDENT. EXT.P5:COPY OF NOTICE U/S. 221(1) DTD. 20/02/2007 ISSUED BY THE FIRST RESPONDENT.THE FIRST RESPONDENT. EXT.P6:COPY OF LETTER DTD. 5/03/2007 SUBMITTED TO THE 2NDRESPONDENT BY THE PETITIONER.RESPONDENT BY THE PETITIONER. EXT.P7:COPY OF LETTER DTD. 14/03/2006 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT.PETITIONER TO THE FIRST RESPONDENT. KSS /TRUE COPY/ K.BALAKRISHNAN NAIR, J.------------------------------- W.P.(C).No.9265 of 2007-C --------------------------------- Dated this the 21[st] day of March, 2007 JUDGMENT The petitioner feeling aggrieved by Ext.P1 assessment order ofincome tax has filed Ext.P2 appeal before the third respondent.Simultaneously, it submitted Ext.P3 application before the assessing authorityunder Section 220 (6) of the Income Tax Act praying to treat it as not indefault in respect of the amount disputed by it in the appeal. The saidapplication was disposed of by the assessing authority by Ext.P4 dated1-3-2007, which reads as follows: “With reference to the above, it is hereby broughtto your notice that stay cannot be granted by thisoffice. You are requested to obtain stay from anyhigher authority or pay the demand failing which Imay be constrained to take coercive steps forcollection of the demand. Your reply, if any, maybe furnished on or before 7-3-2007.” Thereafter, the petitioner has been served with Ext.P5 demand notice. This writ petition is filed challenging Exts.P4 and P5. 2. Heard the learned Standing Counsel for the respondents. 3. Since the appeal is pending, the petitioner can move the appellate authority for stay of Ext.P1 assessment order. So, the petition presentedunder Sec.220 (6) of the Income Tax Act is redundant and unnecessary. WPC 9265/2007 “With reference to the above, it is hereby broughtto your notice that stay cannot be granted by thisoffice. You are requested to obtain stay from anyhigher authority or pay the demand failing which Imay be constrained to take coercive steps forcollection of the demand. Your reply, if any, maybe furnished on or before 7-3-2007.” Thereafter, the petitioner has been served with Ext.P5 demand notice. This writ petition is filed challenging Exts.P4 and P5. 2. Heard the learned Standing Counsel for the respondents. 3. Since the appeal is pending, the petitioner can move the appellate authority for stay of Ext.P1 assessment order. So, the petition presentedunder Sec.220 (6) of the Income Tax Act is redundant and unnecessary. WPC 9265/2007 4. The petitioner's right to represent under Section 220 (6) is astatutory right. When an application is filed under that provision, theassessing authority is bound to pass orders on it, in accordance with law.The power conferred on him is a power coupled with duty which has to beexercised when an application is made by a person interested andcircumstances warranting exercise are shown. The petitioner has remediesbefore the appellate authority. But that is not a ground not to consider itsapplication under Section 220 (6), in accordance with law. Therefore, Ext.P4is quashed. The first respondent is directed to pass fresh orders on Ext.P2in accordance with law, within two weeks from the date of production of acopy of this judgment. If the petitioner produces a copy of this judgment allfurther proceedings pursuant to Ext.P5 will be kept in abeyance for a periodof three weeks from today. The Writ Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE.