KERALA LIVE STOCK DEVELOPMENT BOARD LTD. vs. THE ASSISTANT COMMISSIONER OF INCOME TAX

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WP(C)/5083/2018HC KeralaKLHC01036673201821 February 2018Author: HONOURABLE MR. JUSTICE P.B.SURESH KUMAR5 pages
AI SummaryRemanded

What did the High Court hold?

The High Court of Kerala, in its writ jurisdiction, considered the present writ petition. The Court noted that the petitioner had filed an appeal before the Commissioner of Income Tax (Appeals) and had also filed stay petitions before the revenue authorities. The Principal Commissioner of Income Tax had rejected the stay petition on January 23, 2018. The Court also took note of a common order passed by the Income Tax Appellate Tribunal (ITAT) in ITA Nos. 474, 484, and 485/COCH/2016 dated February 1, 2018, which was produced by the petitioner. Without delving into the merits of the assessment or the stay petitions, the High Court observed that the ITAT had already considered the issues and passed an order. Therefore, the High Court deemed it appropriate to dispose of the writ petition by directing the petitioner to approach the ITAT for appropriate relief, given that the Tribunal had already dealt with similar matters.

What were the facts?

The petitioner, Kerala Livestock Development Board Ltd., is challenging an assessment order dated December 30, 2016, and a demand notice for Rs. 13,22,20,080/- issued by the Assistant Commissioner of Income Tax. The petitioner filed an appeal before the Commissioner of Income Tax (Appeals) on January 25, 2017. Subsequently, the petitioner filed stay petitions before the Assistant Commissioner and the Principal Commissioner of Income Tax. The Principal Commissioner passed an order on January 23, 2018, rejecting the stay petition. The Assistant Commissioner issued a letter on February 7, 2018, demanding payment of the disputed amount. The petitioner is now before the High Court seeking relief against the demand and the order rejecting the stay.

What were the issues?

1. Whether the impugned order dated 23.01.2018 passed by the 2nd respondent (Principal Commissioner of Income Tax) rejecting the stay petition filed by the petitioner is legally sustainable? Assessee's Contention: The assessee argues that the Principal Commissioner of Income Tax erred in rejecting the stay petition without considering the merits of the case and the substantial grounds raised in the appeal. They contend that the assessment order itself is erroneous and that a prima facie case exists for granting a stay. They rely on the principle that a stay should ordinarily be granted when there is a strong arguable case and irreparable loss would be caused by recovery of the disputed demand. Revenue's Contention: The revenue, through its counsel, likely argued that the stay petition was rejected based on the prevailing guidelines and that the petitioner has not made out a case for exceptional circumstances warranting a stay. They may have contended that the assessment order is valid and that the petitioner has not demonstrated undue hardship or a lack of prima facie case.

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 P.B.SURESH KUMAR WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939 WP(C).No. 5083 of 2018 PETITIONER(S) KERALA LIVE STOCK DEVELOPMENT BOARD LTD. GOKULAM,PATTOM, THIRUVANANTHAPURAM - 695 004, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT(S): 1. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE(1), KOWDIAR, THIRUVANANTHAPURAM - 695 003. 2. PRINCIPAL COMMISSIONER OF INCOME TAX OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, KOWDIAR, THIRUVANANTHAPURAM - 695 003. 3. THE COMMISSIONER OF INCOME TAX(APPEALS), KOWDIAR THIRUVANANTHAPURAM - 695 003. R BY SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5083 of 2018 (I) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 30.12.2016. EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE DATED 30.12.2016 ISSUED BY THE 1ST RESPONDENT FOR A SUM OF RS.13,22,20,080/-. EXHIBIT P3 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) DTD. 25.01.2017. EXHIBIT P4 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 07.02.2017. EXHIBIT P5 TRUE COPY OF THE LETTER BEARING NO.CIR-1(1) TVM/STAY/16-17 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 20.02.2017. EXHIBIT P6 TRUE COPY OF THE PETITION FOR STAY FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 2.3.2017. EXHIBIT P7 TRUE COPY OF THE LETTER BEARING NO.CIR-1(1)TVM/STAY/16-17 DATED 17.03.2017. EXHIBIT P8 TRUE COPY OF THE ORDER NO.C.NO. 701/J/CIT/STAY/86/2016-17 DATED 23.01.2018 PASSED BY THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE LETTER BEARING NO.AAACK9533D/CIR-I/TVM/17-18 DATED 7.2.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P10 TRUE COPY OF THE COMMON ORDER IN ITA NOS. 474, 484 AND 485/COCH/2016 DATED 1.2.2018. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// SD/- P.A. TO JUDGE P.B.SURESH KUMAR, J. ================ W.P.(C).No.5083 of 2018 -------------------------------------------- Dated this the 21st day of February, 2018

J U D G M E N T Petitioner is an assessee under the Income Tax Act (the Act) on the rolls of the first respondent. The self assessment made by the petitioner under the Act for the year 2014-’15 has been revised by the first respondent in terms of Ext.P1 order under Section 143(3) of the Act. Aggrieved by Ext.P1 order, the petitioner preferred Ext.P3 appeal before the third respondent and the same is pending. Ext.P11 is the stay petition preferred by the petitioner in Ext.P3 appeal. Earlier, the petitioner had moved the assessing authority under sub- section (6) of Section 220 of the Act for stay of realisation of the amounts covered by Ext.P1 order. In terms of Ext.P5 order, the assessing authority granted the stay sought for by the petitioner on condition that they shall remit 15% of the : 2 : demand. The petitioner though moved the second respondent for a review of Ext.P5 order, the second respondent, as per Ext.P8, modified Ext.P5 order directing the petitioner to pay 20% of the demand. The petitioner is aggrieved by Exts.P5 and P8 orders. The case of the petitioner is that in the light of Ext.P10 order passed by the Income Tax Appellate Tribunal in respect of the assessments of the petitioner for the previous years, the petitioner ought to have been granted absolute stay by the authorities. The petitioner, therefore, seeks appropriate directions in this regard.

2.

Heard the learned counsel for the petitioner as also the learned Standing Counsel for the respondents. Having regard to the facts and circumstances of the case, especially Ext.P10 order passed by the Income Tax Appellate Tribunal, I deem it appropriate to dispose of the writ petition directing the third respondent to pass orders on Ext.P11 application for stay. Ordered accordingly. This shall be done within two months from the date of receipt of a copy of this judgment. Needless to say that in the matter of complying with the direction aforesaid, Ext.P10 order passed by the Income Tax Appellate : 3 : Tribunal in the case of the petitioner for the previous years shall be taken into account. Needless also to say that further proceedings pursuant to Ext.P1 order shall be deferred till orders are passed by the appellate authority as directed above. P.B.SURESH KUMAR

JUDGE SKS

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