KUTTAMASSERY SERVICE CO-OPERATIVE BANK LTD. NO. 766 vs. INCOME TAX OFFICER

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WP(C)/5595/2020HC KeralaKLHC01014891202026 February 2020Author: HONOURABLE MR.JUSTICE S.V.BHATTI4 pages
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What did the High Court hold?

The High Court disposed of the writ petition by directing the Commissioner of Income Tax (Appeals)-2 to consider and dispose of the statutory appeal filed by the petitioner at the earliest. The Court also directed that recovery proceedings and the collection of assessed tax be kept in abeyance pending the disposal of the appeal. The Court took note of the Full Bench decision in The Mavilayi Service Co-operative Bank Ltd. v. The Commissioner of Income Tax, Calicut [2019 (2) KHC 287]. The ratio of the decision is that where facts are similar to a precedent, and a stay on recovery pending appeal has been granted in similar cases, the same relief should be extended. The operative direction is to dispose of the appeal expeditiously and stay recovery.

What were the facts?

The petitioner, Kuttasserim Service Co-operative Bank Ltd., filed a writ petition before the High Court of Kerala. The petitioner sought a direction for the disposal of its statutory appeal pending before the Commissioner of Income Tax (Appeals)-2. The petitioner also sought a stay on recovery proceedings during the pendency of the appeal. The petitioner relied on a Division Bench judgment dated July 1, 2019, in W.A. No. 1536 of 2019 and connected cases, which directed disposal of appeals and granted stay of recovery. The Income Tax Officer, Ward-2, Aluva, and the Commissioner of Income Tax (Appeals)-2 were the respondents. The assessment year(s) are not explicitly stated.

What were the issues?

1. Whether the Commissioner of Income Tax (Appeals) should be directed to dispose of the statutory appeal filed by the petitioner at the earliest, considering the facts and circumstances. 2. Whether recovery proceedings and collection of tax assessed should be kept in abeyance pending the disposal of the statutory appeal. Assessee's Contentions: The petitioner contended that a Division Bench judgment in W.A. No. 1536 of 2019 and connected cases directed the disposal of appeals and granted a stay on recovery proceedings during the pendency of the appeal. The petitioner urged the court to follow this precedent. Revenue's Contentions: The learned Standing Counsel for the respondents admitted that the facts of the present case were substantially the same and similar to those noted by the Division Bench in W.A. No. 1536 of 2019, and therefore, the said judgment could be followed.

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Heard together (2 matters)

WP(C).No.5595 OF 2020
W.A No.1536 of 2019

Read from the judgment's own cause title. This page is filed under one of them.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941 WP(C).No.5595 OF 2020(Y) PETITIONER: KUTTAMASSERY SERVICE CO-OPERATIVE BANK LTD. NO. 766 THOTTUMUGHAM,ALUVA.P.O, ERNAKULAM-683105. REPRESENTED BY ITS SECRETARY-IN-CHARGE. BY ADVS. SRI.C.A.JOJO SMT.SWATHY S. RESPONDENTS: 1 INCOME TAX OFFICER WARD-2, ALUVA -683101. 2 COMMISSIONER OF INCOME TAX(APPEALS)-2, OFFICE OF THE COMMISSIONER OF INCOME TAX,KOCHI-2. SRI.CHRISTOPHER ABRAHAM, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.5595 OF 2020(Y) -2- JUDGMENT Dated this the 26th day of February 2020 Heard Adv.C.A.Jojo, the learned counsel for the petitioner and Sri. Christopher Abraham, the learned Standing Counsel for respondents.

2.

Petitioner refers to and relies on judgment dated 01.07.2019 in W.A No.1536 of 2019 and connected cases to contend that the Division Bench directed disposal of appeal and granted stay of recovery proceedings during the pendency of the appeal.

3.

The learned Standing Counsel admits that the facts of the case are substantially same and similar to the facts noted by the Division Bench in W.A. No.1536 of 2019, hence can be followed. Hence, the writ petition is disposed of directing the Commissioner of Income Tax (Appeals)/ 2nd respondent to WP(C).No.5595 OF 2020(Y) -3- consider and dispose of the statutory appeal filed by the petitioner herein at the earliest taking note of the Full Bench decision reported in The Mavilayi Service Co-operative Bank Ltd, v. The Commissioner of Income Tax, Calicut [2019 (2) KHC 287] and to keep in abeyance recovery proceedings and collection of tax assessed, pending disposal of such appeal. S.V.BHATTI JUDGE hmh

WP(C).No.5595 OF 2020(Y) -4-

Appendix — schedule of exhibits
APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE ASSESSMENT ORDER FOR AY-2017-18 DATED 29.12.2019 ISSUED BY THE FIRST RESPONDENT EXHIBIT P2 A TRUE COPY OF THE DEMAND NOTICE U/S 156 DATED 14.01.2020 ISSUED BY THE FIRST RESPONDENT EXHIBIT P3 A TRUE COPY OF THE APPEAL FOR AY 2017- 18 BEFORE THE 2ND RESPONDENT DATED 30.01.2020. EXHIBIT P4 A TRUE C0PY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 19.02.2020 FOR 20% OF TAX. RESPONDENTS' EXHIBITS: NIL

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