THOMAS DANIEL, vs. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE,

WP(C)/7541/2019HC KeralaKLHC01019431201915 March 2019Author: HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court found that the petitioner should be given another opportunity to present grounds for an absolute stay. The Court directed the petitioner to pay Rs. 50 lakhs on or before March 30, 2019. Upon such payment, the stay application would be reconsidered by the appellate authority within six weeks after hearing the petitioner. If the payment is made, recovery would be stayed until the stay application is disposed of. The Court disposed of the writ petition with these directions. The specific grounds for the original stay order and the merits of the petitioner's appeal were not decided.

What were the facts?

The petitioner, Thomas Daniel, approached the High Court of Kerala challenging an order of stay granted by the Commissioner of Income Tax (Appeals) in an appeal. The appellate authority had granted a conditional stay, requiring the petitioner to pay 20% of the demand on or before March 15, 2019. The petitioner contended that the order was passed without proper reasoning and without considering his arguments. The revenue's counsel argued that the petitioner had not sought an absolute stay and that the appellate authority had exercised its discretion by ordering a partial payment.

What were the issues?

1. Whether the order of stay passed by the Commissioner of Income Tax (Appeals) was arbitrary and lacked proper reasoning, failing to consider the petitioner's arguments for an absolute stay? (Question of law and fact, turning on principles of natural justice and appellate discretion). Assessee's contentions: The orders were passed without any reason, and the petitioner's arguments were not considered. Revenue's contentions: The petitioner had not canvassed any ground for an absolute stay in the application, and the appellate authority exercised its discretion by ordering payment of 20% of the demand.

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 FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940 WP(C).No. 7541 of 2019 PETITIONER: THOMAS DANIEL, AGED 64 YEARS S/O.DANIEL THOMAS, INDIKATTIL HOUSE, VAKAYAR, KONNI, PATHANAMTHITTA - 689 698. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE, INCOME TAX DEPARTMENT, THIRUVALLA - 689 101. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), KOTTAYAM - 686 001. 3 THE TAX RECOVERY OFFICER, DEPARTMENT OF INCOME TAX, THIRUVALLA - 689 101. SMT THUSHARA JAMES-GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- WP(C).No. 7541 of 2019

JUDGMENT The petitioner, impugning an order of stay in a petition filed in appeal before the Commissioner of Income Tax (Appeals) has approached this Court. A conditional stay was granted on payment of 20% the demand on or before 15.03.2019. 2. The petitioner's case is that the orders were passed without any reason and the petitioners arguments were not considered. The learned standing counsel for the Income Tax Authority would submit that petitioner has not canvassed any ground for an absolute stay in the application and exercising discretion the appellate authority only ordered payment of 20% of the demand.

I am of the view that one more opportunity should be given to the petitioner to urge the grounds for an absolute stay on condition. The Petitioner shall pay Rs.50 lakhs on or -3- before 30.03.2019. If the petitioner makes such payment, the stay application shall be re-considered within six weeks after hearing the petitioner. If such payment is effected there will be a stay of recovery till the stay application is disposed of . The writ petition is disposed of accordingly. A.MUHAMED MUSTAQUE JUDGE JS

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Appendix — schedule of exhibits

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2016-17. EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT 2016-17. EXHIBIT P3 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT 2016-17. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 COPY OF OFFICE MEMORANDUM (RELEVANT PORTION)

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