THE KANJIKODE SERVICE CO-OPERATIVE BANK LTD. NO. F1199 vs. THE INCOME TAX OFFICER

WP(C)/5681/2020HC KeralaKLHC01015105202005 March 2020Author: HONOURABLE MR. JUSTICE AMIT RAWAL4 pages

AI SummaryRemanded

What did the High Court hold?

The High Court held that the writ petition would not lie, as the petitioner's remedy was to press their pending stay application before the ITAT. However, considering that no steps for demand or attachment proceedings under Section 281 of the Income Tax Act had been initiated, the Court disposed of the writ petition with a direction to the ITAT (respondent no. 3) to consider and pass appropriate orders on the stay application expeditiously, within 15 days of receiving a certified copy of the judgment. The High Court did not decide the merits of the appeal or the stay application itself, but rather directed the ITAT to address the stay application.

What were the facts?

The petitioner, The Kanjikode Service Co-operative Bank Ltd., filed a writ petition before the High Court of Kerala challenging assessment order Ext.P1 and appellate order Ext.P2. The petitioner had preferred a second appeal before the Income Tax Appellate Tribunal (ITAT), respondent no. 3, and filed an interim application (Ext.P4) seeking to keep coercive measures in abeyance until the appeal was decided. The Revenue contended that the writ petition was not maintainable as the petitioner's remedy lay in pressing the pending stay application before the ITAT. The High Court noted that the pleadings did not mention any steps for taking possession. It also observed that no demand or attachment proceedings under Section 281 of the Income Tax Act had been initiated.

What were the issues?

1. Whether a writ petition is maintainable when the assessee has a pending appeal before the ITAT and a stay application therein. Assessee's Contention: The petitioner approached the High Court by way of a writ petition, seeking to prevent coercive measures while their second appeal was pending before the ITAT. The petitioner also filed an interim application before the ITAT for a stay. Revenue's Contention: The Revenue argued that the writ petition was not maintainable, and the petitioner's remedy was to pursue their pending stay application before the ITAT.

Which sections of the Income-tax Act were involved?

Section 281

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 AMIT RAWAL THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941 WP(C).No.5681 OF 2020(I) PETITIONER: THE KANJIKODE SERVICE CO-OPERATIVE BANK LTD. NO. F1199 KANJIKODE P.O., KANJIKODE, PALAKKAD-678 621, REPRESENTED BY ITS SECRETARY, GURU RAJALINGAM. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE INCOME TAX OFFICER, WARD 1, AYAKAR BAHVAN, PALAKKAD-678 014. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), AYAKAR BHAVAN, THRISSUR-680 001. 3 THE INCOME TAX APPELLATE TRIBUNAL, AYAKAR BHAVAN, KAKKANADU, KOCHI-682 030, REPRESENTED BY ITS REIGSTRAR. OTHER PRESENT: GP DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.5681 OF 2020 -2-

JUDGMENT The grievance of the petitioner in the instant case is that against the order of assessment, Ext.P1 and appellate order Ext.P2, preferred a second appeal, Ext.P3 before the 3rd respondent ie., the Income Tax Appellate Tribunal (ITAT) along with the interim application, Ext.P4 dated 5th February 2020, till such time, the contemplated coercive measures against the petitioner may be kept in abeyance.

Counsel for the Revenue submits that the writ petition would not lie as the remedy for the petitioner is to press the pending stay application before the ITAT. Having heard the learned counsel for the parties and apprised the paper book, I am of the view that the pleadings are bereft of any steps for taking of WP(C).No.5681 OF 2020 -3- possession by making mention or otherwise before the ITAT. Be that as it may, considering the fact that no steps of demand or attachment proceedings under Section 281 of the Income Tax Act have been initiated, I dispose of the writ petition with a direction to 3rd respondent to consider and pass appropriate orders on the application of stay in accordance with law, as expeditiously as possible within a period of 15 days from the date of receipt of a certified copy of this judgment. AMIT RAWAL vv JUDGE

WP(C).No.5681 OF 2020 -4-

Appendix — schedule of exhibits

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11. EXHIBIT P2 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2010-11. EXHIBIT P3 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT -2010-11. EXHIBIT P4 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. //TRUE COPY// PA TO JUDGE

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