Wp(C)/9270/2021 Of M/S Rainbow Realtors v. Asst Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 30 DAY OF NOVEMBER 2021/ 9TH AGRAHAYANA, 1943 WP(C) NO. 9270 OF 2021 PETITIONER: M/S RAINBOW REALTORS, RAINBOW SUITES, BELLARD ROAD, KANNUR - 670001, REPRESENTED BY ITS MANAGING PARTNER ETTOOL KALATHIL ABDULHAMEED. BY ADV S.ARUN RAJ RESPONDENTS: 1ASST COMMISSIONER OF INCOME TAX,CIRCLE - 1, KANNUR - 670006, 2COMMISSIONER OF INCOME TAX(APPEALS) AAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE - 673001, 3THE PRINCIPAL COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN, MANANCHIRA, KOZHIKODE - 673001. AAYAKAR BHAVAN, MANANCHIRA, BY ADV.CHRISTOPHER ABRAHAM-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FORADMISSION ON 30.11.2021, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: W.P.(C) No.9270/21 BECHU KURIAN THOMAS, J. ----------------------------------------- W.P.(C) No.9270 of 2021 ---------------------------------------- Dated this the 30[th] day of November, 2021 JUDGMENT Petitioner is an assessee under the Income Tax Act, 1961. Byfour different assessment orders for the assessment years 2011-12,2012-13, 2015-16 and 2016-17, petitioner was saddled with a hugeliability. The orders were challenged in appeal before the secondrespondent. 2. In the meantime, since coercive proceedings were initiated,including for two more additional assessment years of 2013-14 and2014-15, petitioner approached this Court through W.P.(C) No.2193of 2019 seeking stay of the recovery proceedings. By judgmentdated 24.01.2019, this Court directed the stay petitions to bedisposed of by the appellate authority. Thereafter, the secondrespondent, by Ext.P5 order, directed the petitioner to deposit 20% ofthe amount demanded in the assessment orders, for all the years infour instalments. When the said order was challenged before this W.P.(C) No.9270/21 -:3:- Court in W.P.(C) No.15061 of 2019, by judgment dated 20.06.2019,this Court found that the condition of 20% directed to be depositedwas not arbitrary, however the number of instalments were increasedto six instalments. While extending the instalment facility to sixinstalments, this Court observed that the balance of demand shallstand stayed for six months or till the disposal of the appeal,whichever is earlier. 3. Though all the appeals were posted for hearing before the2[nd] respondent on 19.11.2019, due to a technical issue, only theappeals relating to the assessment years 2013-14 and 2014-15alone were heard. The remaining appeals, i.e., those for theassessment years 2011-12, 2012-13, 2015-16 and 2016-17 could notbe heard on the said date. Thereafter, by order dated 26.02.2020,the appeals relating to the assessment years 2013-14 and 2014-15were disposed of. 4. Petitioner contends that, unfortunately, since the appeals for the assessment years 2011-12, 2012-13, 2015-16 and 2016-17 couldnot be disposed of and the interim order of stay granted by this Courtprescribed a time limit of six months or till the disposal of the appealwhichever was earlier, the stay granted by this Court expired in the W.P.(C) No.9270/21 -:4:- meantime. It is in such circumstances that the petitioner hasapproached this Court seeking a direction to dispose of the appealsfor the aforesaid years in a time bound manner and also to restrainthe continuance of the coercive proceedings, till such orders arepassed. 5. I have heard the learned counsel for the petitioner, Sri.ArunRaj S., as well as the learned Standing Counsel Sri.ChristopherAbraham. 6. On a consideration of the issues arising in the case, I am of the assessment years 2011-12, 2012-13, 2015-16 and 2016-17 couldnot be disposed of and the interim order of stay granted by this Courtprescribed a time limit of six months or till the disposal of the appealwhichever was earlier, the stay granted by this Court expired in the W.P.(C) No.9270/21 -:4:- meantime. It is in such circumstances that the petitioner hasapproached this Court seeking a direction to dispose of the appealsfor the aforesaid years in a time bound manner and also to restrainthe continuance of the coercive proceedings, till such orders arepassed. 5. I have heard the learned counsel for the petitioner, Sri.ArunRaj S., as well as the learned Standing Counsel Sri.ChristopherAbraham. 6. On a consideration of the issues arising in the case, I am of the view that since the petitioner had already paid the 20% directedto be deposited, it is only reasonable that the interim order continuestill the disposal of the appeal. The order directing deposit of 20% ofthe disputed tax is an exercise of discretion. When such a discretionwas exercised, a direction for any further deposit is not warranted inthe facts and circumstances of the case. 7. In view of the above, the interim order dated 11.03.2019 in ITA-11222, ITA-11225, ITA-11227, ITA-11232/CIT(A)/CLT/2016-17,ITA No.11232, ITA 11311/CIT(A)/CLT/2018-19 as ordered throughExt.P5, shall stand extended until disposal of the said appeals. W.P.(C) No.9270/21 -:5:- 8. Since the appeals preferred by the petitioner for the assessment years 2011-12, 2012-13, 2015-16 and 2016-17 are stillpending consideration before the second respondent, it is essentialin the interests of justice that the said appeals be directed to bedisposed of in a time bound manner. 9. Accordingly while the interim stay already directed willcontinue till disposal of the appeals, there will be a direction to thesecond respondent to consider and pass appropriate orders on theappeals filed by the petitioner relating to the assessment years 2011-12, 2012-13, 2015-16 and 2016-17, as expeditiously as possible, atany rate, within a period of six months from the date of receipt of acopy of this judgment. The writ petition is disposed of as above. Sd/- vps BECHU KURIAN THOMAS JUDGE W.P.(C) No.9270/21 -:6:- APPENDIX OF WP(C) 9270/2021 PETITIONER'S/S' EXHIBITS EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED31.12.2016 PASSED BY THE 1ST RESPONDENTFOR THE YEAR 2011-12. EXHIBIT P1(a) TRUE COPY OF THE ASSESSMENT ORDER DATED31.12.2016 PASSED BY THE 1ST RESPONDENTFOR THE YEAR 2012-13.31.12.2016 PASSED BY THE 1ST RESPONDENTFOR THE YEAR 2012-13. EXHIBIT P1(b) TRUE COPY OF THE ASSESSMENT ORDER DATED29.12.2017 PASSED BY THE 1ST RESPONDENTFOR THE YEAR 2015-16.29.12.2017 PASSED BY THE 1ST RESPONDENTFOR THE YEAR 2015-16. EXHIBIT P1(c) TRUE COPY OF THE ASSESSMENT ORDER DATED28.12.2018 PASSED BY THE DY.CIT. ASMNT.FOR THE AY 2016-17.28.12.2018 PASSED BY THE DY.CIT. ASMNT.FOR THE AY 2016-17. EXHIBIT P2 TRUE COPY OF APPEAL MEMORANDUM ALONGWITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2011-12.WITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2011-12. EXHIBIT P2(a) TRUE COPY OF THE APPEAL MEMORANDUM ALONGWITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2012-13.WITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2012-13. EXHIBIT P2(b) TRUE COPY OF THE APPEAL MEMORANDUM ALONGWITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2015-16.WITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2015-16. EXHIBIT P2(c)TRUE COPY OF THE APPEAL MEMORANDUM ALONGWITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2016-17.WITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2016-17. EXHIBIT P2(a) TRUE COPY OF THE APPEAL MEMORANDUM ALONGWITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2012-13.WITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2012-13. EXHIBIT P2(b) TRUE COPY OF THE APPEAL MEMORANDUM ALONGWITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2015-16.WITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2015-16. EXHIBIT P2(c)TRUE COPY OF THE APPEAL MEMORANDUM ALONGWITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2016-17.WITH THE GROUND OF APPEAL FILED BEFORETHE 2ND RESPONDENT BY THE PETITIONER FORTHE AY 2016-17. EXHIBIT P3TRUE COPY OF STAY PETITION SUBMITTED BYTHE PETITIONER TO THE 2ND RESPONDENT FORTHE AY 2011-12.THE PETITIONER TO THE 2ND RESPONDENT FORTHE AY 2011-12. EXHIBIT P3(a)TRUE COPY OF STAY PETITION SUBMITTED BYTHE PETITIONER TO THE 2ND RESPONDENT FORTHE PETITIONER TO THE 2ND RESPONDENT FOR W.P.(C) No.9270/21 THE AY 2012-13 EXHIBIT P3(b)TRUE COPY OF STAY PETITION SUBMITTED BYTHE PETITIONER TO THE 2ND RESPONDENT FORTHE AY 2015-16.THE PETITIONER TO THE 2ND RESPONDENT FORTHE AY 2015-16. EXHIBIT P3(c)TRUE COPY OF STAY PETITION SUBMITTED BYTHE PETITIONER TO THE 2ND RESPONDENT FORTHE AY 2016-17.THE PETITIONER TO THE 2ND RESPONDENT FORTHE AY 2016-17. EXHIBIT P4TRUE COPY OF THE JUDGMENT DATED24.01.2019 IN WP(C) NO. 2193/2019 PASSEDBY THIS HONOURABLE COURT.24.01.2019 IN WP(C) NO. 2193/2019 PASSEDBY THIS HONOURABLE COURT. EXHIBIT P5TRUE COPY OF THE COMMON ORDER DATED11.3.2019 PASSED BY THE 2ND RESPONDENTEXHIBIT P-3,P-3(A), P-3(B) AND P-3(C)FOR THE AY'S 2011-12, 2012-13, 2015-16AND ALSO IN THE STAY PETITIONS FOR AY'S2013-14 AND 2014-15.11.3.2019 PASSED BY THE 2ND RESPONDENTEXHIBIT P-3,P-3(A), P-3(B) AND P-3(C)FOR THE AY'S 2011-12, 2012-13, 2015-16AND ALSO IN THE STAY PETITIONS FOR AY'S2013-14 AND 2014-15. EXHIBIT P6TRUE COPY OF THE JUDGMENT DATED20.06.2019 IN WP(C) NO. 15061 OF 2019PASSED BY THIS HONOURABLE COURT.20.06.2019 IN WP(C) NO. 15061 OF 2019PASSED BY THIS HONOURABLE COURT. EXHIBIT P7TRUE COPY OF THE JUDGMENT DATED13.08.2019 IN W.A NO. 1769 OF 2018PASSED BY THE DIVISION BENCH OF THISHONOURABLE COURT.13.08.2019 IN W.A NO. 1769 OF 2018PASSED BY THE DIVISION BENCH OF THISHONOURABLE COURT. EXHIBIT P8TRUE COPY OF THE ORDER PASSED BY THISHONOURABLE COURT IN I.A NO.1/2019 INWP(C) NO. 15061 OF 2019.HONOURABLE COURT IN I.A NO.1/2019 INWP(C) NO. 15061 OF 2019. EXHIBIT P9TRUE COPY OF THE FORM 26AS FOR THERELEVANT ASSESSMENT YEAR 2011-12.RELEVANT ASSESSMENT YEAR 2011-12. EXHIBIT P9(a)TRUE COPY OF THE FORM 26AS FOR THERELEVANT ASSESSMENT YEAR 2012-13.RELEVANT ASSESSMENT YEAR 2012-13. EXHIBIT P9(b)TRUE COPY OF THE FORM 26AS FOR THERELEVANT ASSESSMENT YEAR 2015-16.RELEVANT ASSESSMENT YEAR 2015-16. EXHIBIT P9(c)TRUE COPY OF THE FORM 26AS FOR THERELEVANT ASSESSMENT YEAR 2016-17.RELEVANT ASSESSMENT YEAR 2016-17. EXHIBIT P10TRUE COPY OF THE NOTICE OF POSTING FORHEARING THE THE APPEALS FOR THE AY 2011-12.HEARING THE THE APPEALS FOR THE AY 2011-12. EXHIBIT P10(a) TRUE COPY OF THE NOTICE POSTING FOR W.P.(C) No.9270/21 -:8:- HEARING THE APPEALS FOR THE AY 2012-13.EXHIBIT P10(b)TRUE COPY OF THE NOTICE POSTING FORHEARING THE APPEALS FOR THE AY 2015-16.EXHIBIT P10(c)TRUE COPY OF THE NOTICE POSTING FORHEARING THE APPEALS FOR THE AY 2016-17.