THE SREEKRISHNAPURAM SERVICE CO-OPERATIVE BANK LTD.NO.F1213 vs. THE ASSISTANT COMMISSIONER OF INCOME TAX

WP(C)/19151/2019HC KeralaKLHC01048950201915 July 2019Author: HONOURABLE MR.JUSTICE S.V.BHATTI4 pages

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What did the High Court hold?

The High Court of Kerala, while perusing the provided documents (Exts. P1, P2, and P3), found a prima facie case for issuing necessary directions to the second respondent (The Commissioner of Income Tax (Appeals)). The Court acknowledged the limited prayer made by the petitioner. Consequently, the Court directed the appellate authority (2nd respondent) to consider and dispose of the stay application (Ext.P3) as early as possible, preferably within two months from the date of receipt of a copy of the judgment. Additionally, the respondents were directed not to take coercive steps or recover the amounts determined in the orders under appeal for ten weeks from the date of the judgment. The Court did not decide on the merits of the appeal or the stay petition itself, but rather on the procedural aspect of expeditious disposal.

What were the facts?

The petitioner, The Sreekrishnapuram Service Co-operative Bank Ltd., filed an appeal (Ext.P2) against an assessment order (Ext.P1) passed under Section 25(1) of the KVAT Act. Along with the appeal, the petitioner filed a stay petition (Ext.P3). The petitioner contended that the mere filing or pendency of an appeal does not automatically grant a stay. They argued that delays in disposing of the stay petition by the appellate authority could lead to the assessing officer initiating recovery proceedings, rendering the statutory appeal ineffective. The petitioner sought a direction for the appellate authority to consider and dispose of the stay petition expeditiously, as provided by law to protect the appellant's interests pending appeal.

What were the issues?

1. Whether the mere filing or pendency of an appeal against an assessment order under the KVAT Act amounts to a stay of recovery proceedings? (Question of law) 2. Whether the petitioner is entitled to a direction for the expeditious disposal of their stay petition pending before the appellate authority? (Question of mixed law and fact) Assessee's Contentions: - The petitioner argued that neither the filing nor the pendency of an appeal automatically grants a stay. They relied on the principle that statutory provisions for protecting an appellant's interest pending appeal necessitate timely disposal of stay petitions. Revenue's Contentions: - The judgment does not record any specific contentions made by the revenue.

Which sections of the Income-tax Act were involved?

25(1)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941 WP(C).No.19151 of 2019 PETITIONER/S: THE SREEKRISHNAPURAM SERVICE CO-OPERATIVE BANK LTD.NO.F1213 SREEKRISHNAPURAM.P.O., PALAKKAD-679 513, REPRESENTED BY ITS SECRETARY, ULLAS KUMAR C., AGED 38, S/O.JANARDHANAN NAIR. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1, PALAKKAD-678 014. 2 THE COMMISSIONER OF INCOME TAX(APPEALS) SAKTHAN NAGAR, THRISSUR-680 001 3 THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-1, AAYKAR BHAVAN, PALAKKAD-678 014. SC SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- WP(C).No.19151 of 2019

JUDGMENT The petitioner filed appeal in Ext.P2 aggrieved by the order of assessment in Ext.P1 made under Section 25(1) of the KVAT Act. The petitioner has filed the appeal with a stay petition in Ext.P3. The petitioner prays for appropriate direction to the appellate authority to consider and dispose of Ext.P3 expeditiously.

The case of petitioner is that either the mere filing of appeal or mere pendency of appeal does not amount to granting stay by the appellate authority. The delay in considering and disposing of Ext.P3 results in the assessing officer taking steps for recovering the tax amount which is under challenge in Ext.P2. The assessing officer, if is successful in his effort the statutory appeal would become either academic or ineffective. It is further contended by the petitioner that in the manner the law provides for protecting the interest of appellant pending appeal, the order on stay petition is passed expeditiously. Hence the writ petition.

Perused Exts. P1, P2 and P3. Prima facie I am satisfied

-3- that a case is made out for issuing necessary directions to 2nd respondent to dispose of the stay petition in Ext.P3. Having regard to the limited prayer and the grounds referred to above, this Court is satisfied that the writ petition can be disposed of by this order: (a) The appellate authority/ 2nd respondent considers and disposes of Ext.P3 application as early as possible, preferably within two months from the date of receipt of copy of this judgment. (b) The respondents are directed not to take coercive steps or recover the amounts determined in the orders under appeal for ten weeks from today. S.V.BHATTI JUDGE JS

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Appendix — schedule of exhibits

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2016-17 EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2016-17 EXHIBIT P3 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2016-17. EXHIBIT P4 COPY OF COMMUNICATION ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2013-14 TO 2016-17

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