Wp(C)/9782/2020 Of Anil Kumar .S v. Commissioner Of Income Tax (Appeals)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE GOPINATH.P. FRIDAY, THE 08 DAY OF MAY, 2020/18TH VAISAKHA, 1942W.P(C) NO.9782 OF 2020 PETITIONER: ANIL KUMAR.S., AGED 48,S/O. LATE. SUKUMARAN,MANAGING PARTNER, KAIPPALLIL JEWELLERS,VARIETH CENTER PLAZA, NANGIARKULANGARA,ALAPPUZHA DISTRICT – 690 513. BY ADVOCATES: SRI. AYYAPPAN SANKAR SMT. S. HRIDYA (H.248) RESPONDENTS: 1.COMMISSIONER OF INCOME TAX (APPEALS),OFFICE OF THE COMMISSIONER OF INCOME TAX,KOTTAYAM - 686 501. 2.ASSISTANT COMMISSIONER OF INCOME TAX,OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - ALAPPUZHA, A.N.PURAM,ALAPPUZHA PIN : 688 011 BY ADVS. THIS WRIT PETITION HAVING COME UP FOR ADMISSION ON 08.05.2020,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT The petitioner suffered an order of assessment underSection 143(3) of the Income Tax Act. He has preferredExt.P7 appeal before the 1[st] respondent against Ext.P4order of assessment. That appeal is pending. In themeanwhile, the petitioner filed a petition before theAssessing Officer under Section 220(6) of the Income TaxAct, seeking a stay of recovery of the amounts under theassessment order (through Ext.P10 dated 04.03.2020). Theassessing officer instead of deciding the application underSection 220(6) on its merits has directed the petitioner todeposit 20% of the demand for a consideration of theapplication preferred by the petitioner. It is challengingthis communication that this writ petition has been filed. 2.Mr. Ayyappan Sankar, the learned counselappearing for the petitioner would contend that the demandraised in the assessment order is without any basis and thathis client is not liable to pay any amount and that theliability as been fixed wrongly upon him. Sri.Jose Joseph,the learned Standing Counsel appearing for the Department would contend that the assessment order is completelylegal and justified and that there were substantial cashdeposits by the petitioner as a result of which, theDepartment had invoked the provisions of Section 69 of theAct during the course of assessment. The learned StandingCounsel would therefore contend that the conditionimposed by the assessing officer for deposit of 20% iscompletely justified and should not be interfered with. 3.It is not proper or appropriate for this Court toconsider the merit of the rival contentions as the statutoryappeal is pending before the Appellate Authority. 4.The learned counsel for the petitioner hascontended that the imposition of a condition of deposit of20% is extremely harsh considering the present situation oflock-down etc. on account of COVID-19. He states that thepetitioner has to support his staff and meet other expensesof the business without there being any income generatedout of the business. In the circumstances, he prays that thecondition be either completely waived or substantiallyreduced. 5.On a consideration of the facts and circumstances, I am of the opinion that the petitioner canbe asked to deposit a sum equivalent to 10% of the demandin Ext.P4 assessment order in two equal installments. Thepetitioner shall deposit one half of the amount equivalent to10% within three weeks from today. He should deposit thebalance one half on or before 14.08.2020. If these depositsare made, further recovery proceedings shall be kept inabeyance till the disposal of Ext.P7 appeal. With these observations and directions this writpetition is disposed of. Sd/- Dxy GOPINATH.P JUDGE APPENDIX PETITIONER’S EXTS: EXT. P1 – TRUE PHOTOCOPY OF NOTICE DATED 27.05.2019 ISSUED FROM THE OFFICE OF THE 2 RESPONDENT U/S 142(1)OF THE INCOME TAX ACT, 1961. . EXT. P2 – TRUE PHOTOCOPY OF HEARING NOTICE DATED 26.08.2019 ISSUED FROM THE OFFICE OF THE 2 RESPONDENT. . EXT. P3 – TRUE PHOTOCOPY OF 2 NOTICE DATED With these observations and directions this writpetition is disposed of. Sd/- Dxy GOPINATH.P JUDGE APPENDIX PETITIONER’S EXTS: EXT. P1 – TRUE PHOTOCOPY OF NOTICE DATED 27.05.2019 ISSUED FROM THE OFFICE OF THE 2 RESPONDENT U/S 142(1)OF THE INCOME TAX ACT, 1961. . EXT. P2 – TRUE PHOTOCOPY OF HEARING NOTICE DATED 26.08.2019 ISSUED FROM THE OFFICE OF THE 2 RESPONDENT. . EXT. P3 – TRUE PHOTOCOPY OF 2 NOTICE DATED 14.11.2019 ISSUED FROM THE OFFICE OF THE 2 RESPONDENTU/S 142(1) OF THE INCOME TAX ACT, 1961. EXT. P4 – TRUE PHOTOCOPY OF ASSESSMENT ORDER NO: ITBA/AST/S/143(3)/2019-20/1022672543(1) DATED 19/12/2019 U/S 143(3) OF THE INCOME TAX ACT,1961, ISSUED BY THE 2 RESPONDENT. EXT. P5 – TRUE PHOTOCOPY OF DEMAND NOTICE NO: ITBA/AST/S/156/2019-20/1022672616(1) DATED 19/12/2019 ISSUED BY THE 2 RESPONDENT U/S 156 OF THE INCOME TAX ACT,1961. EXT. P6 – TRUE PHOTOCOPY OF PENALTY NOTICE NO:ITBA/ PNL/S/271AAC(1)/2019-20/1023152140(1) DATED 26/12/2019 ISSUED BY THE 2 RESPONDENT. EXT. P7 – TRUE PHOTOCOPY OF FIRST APPEAL AGAINST EXHIBIT-P4 ASSESSMENT ORDER FILED ON 25/01/2020 BEFORE THE 1 RESPONDENT U/S 246A OF THE INCOME TAX ACT,1961. EXT. P8 – TRUE PHOTOCOPY OF REMINDER LETTER NO: ITBA/COM/F/17/2019-20/ 1025019658(1) DATED 11/02/2020 TO EXHIBIT-P5 DEMAND NOTICE ISSUED BY THE 2 RESPONDENT. EXT. P9 – TRUE PHOTOCOPY OF APPLICATION FOR STAY DATED 19/02/2020 FILED BEFORE THE 2 RESPONDENT (U/S 220(6) OF THE INCOME TAX ACT,1961) TO STAY THE PROCEEDINGS PURSUANT TO EXHIBIT-P5 DEMAND NOTICE PENDING DISPOSAL OF EXHIBIT-P7 FIRST APPEAL. EXT. P10 – TRUE PHOTOCOPY OF LETTER NO: ITBA/RCV/ F/107/2019-20/1026077261(1) DATED 04/03/2020 ISSUED FROM THE OFFICE OF THE 2 RESPONDENT DIRECTING W.P(C) NO.9782 OF 2020 PAYMENT OF 20% OF THE DISPUTED DEMAND IMMEDIATELY FOR CONSIDERATION OF THE REQUEST IN EXHIBIT-P9 APPLICATION FOR STAY