POOYAPPALLY SERVICE CO-OPERATIVE BANK LIMITED NO.3964 vs. THE INCOME TAX OFFICER WARD 2,

WP(C)/8732/2019HC KeralaKLHC01022154201921 March 2019Author: HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court held that if the petitioner files a stay application before the concerned authority within one week of receiving a copy of the judgment, the Appellate Authority shall decide on the stay application within two months thereafter. Until such a decision is made, recovery proceedings pursuant to the impugned assessment order shall be deferred. The Court did not decide on the merits of the stay application itself but provided a procedural direction. The operative direction is to defer recovery proceedings and direct the Appellate Authority to decide the stay application.

What were the facts?

The petitioner, Pooyappally Service Co-operative Bank Limited, filed an appeal against an assessment order before the Commissioner of Income Tax (Appeals), the second respondent. The petitioner had not filed any stay application. The petitioner contended that based on a previous judgment of the High Court (Ext.P6), they are entitled to the realization of the amount and recovery proceedings cannot be initiated. The High Court considered the circumstances and the petitioner's submission.

What were the issues?

1. Whether the petitioner is entitled to a stay of recovery proceedings in light of Ext.P6 judgment of this Court? (Question of law and fact, concerning the application of a previous High Court judgment). Assessee's Contention: The petitioner argued that Ext.P6 judgment entitles them to the realization of the amount and that recovery proceedings should not be resorted to. They relied on the principle established in Ext.P6. Revenue's Contention: The judgment does not record any specific contentions made by the revenue regarding this issue.

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 A.MUHAMED MUSTAQUE THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940 WP(C).No. 8732 of 2019 PETITIONER/S: POOYAPPALLY SERVICE CO-OPERATIVE BANK LIMITED NO.3964 MEEYANNOOR, POOYAPPALLY, P.O. KOLLAM, KOLLAM DISTRICT-691537, REPRESENTED BY ITS SECRETARY. BY ADVS. SRI.M.SASINDRAN SRI.S.SHYAM KUMAR RESPONDENT/S: 1 THE INCOME TAX OFFICER WARD 2, AAYAKAR BHAVAN, INCOME TAX OFFICE, NEAR KARBALA JUNCTION, RAILWAY STATION ROAD, KOLLAM-691001. 2 THE COMMISSIONER OF INCOME TAX(APPEALS) AAYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM-695003. MM JASMINE GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8732 of 2019 2

JUDGMENT The petitioner filed an appeal against the assessment order before the 2nd respondent. The petitioner had not moved any stay application. The petitioner would submit that in the light of Ext.P6 judgment of this Court, the petitioner is entitled for realisation of the amount and the recovery cannot be resorted to.

In the above circumstances, I am of the opinion that, if the petitioner moves a stay application before the authority concerned, within a period of one week from the date of receipt of a copy of this judgment, the Appellate Authority shall take a decision on the stay application within a period of two months thereafter. Till then, recovery proceedings, pursuant to the impugned order

WP(C).No. 8732 of 2019 3 shall stand deferred. The writ petition is disposed of as above. A.MUHAMED MUSTAQUE 21/03/2019 JUDGE

WP(C).No. 8732 of 2019 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF THE CERTIFICATE OF CLASSIFICATION ISSUED BY THE ASSISTANT REGISTRAR

(GENERAL)

OF CO-OPERATIVE SOCIETIES, KOTTARAKKARA. EXHIBIT P2 AOF THE ASSESSMENT ORDER DATED 26.12.2018. EXHIBIT P3 AOF THE DEMAND NOTICE DATED 26.12.2018. EXHIBIT P4 AOF THE APPEAL MEMORANDUM FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P5 AOF THE NOTICE UNDER SECTION 226(3) OF THE INCOME TAX ACT DEMANDING THE PETITIONER TO PAY A SUM OF RS.3,34,000/-. EXHIBIT P6 AOF THE JUDGMENT DATED 21.12.2017 IN WPC 38566 OF 2017. RESPONDENTS EXTS: NIL //// P.A TO JUDGE

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