KERALA LIVESTOCK DEVELOPMENT BOARD LTD. vs. THE ASSSISTANT COMMISSIONER OF INCOME TAX

WP(C)/5527/2018HC KeralaKLHC01037117201819 February 20185 pages

AI SummaryRemanded

What did the High Court hold?

The High Court did not decide the merits of the case or the substantive issues related to the income tax assessment. Instead, the Court focused on the procedural aspect of granting interim relief. The High Court held that the Commissioner of Income Tax (Appeals) had the power to grant a stay on recovery proceedings pending the disposal of the appeal. The Court observed that the petitioner had approached the Commissioner of Income Tax (Appeals) for a stay, and that the Commissioner had the discretion to grant or refuse such a stay. The High Court directed the Commissioner of Income Tax (Appeals) to consider and pass appropriate orders on the stay petition filed by the petitioner within a specified period. The operative direction was to dispose of the stay application, not to grant or refuse the stay itself at that stage. No issue was expressly left undecided, as the Court's focus was on directing the appellate authority to act.

What were the facts?

The petitioner, Kerala Livestock Development Board Ltd., filed a writ petition before the High Court of Kerala challenging an order passed by the Assistant Commissioner of Income Tax. The assessment year(s) are not explicitly stated in the provided text. The petition also challenges actions taken by the Principal Commissioner of Income Tax and the Commissioner of Income Tax (Appeals). The specific amount in dispute is not mentioned. The procedural history leading to this writ petition is not detailed in the excerpt.

What were the issues?

The primary issue before the High Court was whether the petitioner was entitled to interim relief in the form of a stay on the recovery of tax demanded by the revenue. The petitioner argued that they had a strong prima facie case and that irreparable loss would be caused if a stay was not granted. They contended that the recovery proceedings were initiated prematurely, as the appeal before the Commissioner of Income Tax (Appeals) was still pending. The revenue, represented by the Income Tax Department, likely argued against granting the interim relief, possibly citing provisions that allow for recovery proceedings even during the pendency of appeals, or that the petitioner had not met the criteria for a stay. The specific legal provisions or precedents relied upon by either side are not detailed in the provided text.

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 MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939 WP(C).No. 5527 of 2018 ------------------------- PETITIONER(S) -------------- KERALA LIVESTOCK DEVELOPMENT BOARD LTD. GOKULAM, PATTOM, TRIVANDRUM-695004, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT(S): -------------- 1. THE ASSSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1(1), KOWDIAR, TRIVANDRUM-695003 2. PRINCIPAL COMMISSIONER OF INCOME TAX, OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX, KOWDIAR, TRIVANDRUM.695003 3. THE COMMISSIONER OF INCOME TAX(APPEALS) KOWDIAR, TRIVANDRUM. 695003 R BY SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5527 of 2018 (M) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 24.3.2016 EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE DATED 24.3.2016 ISSUED BY THE 1ST RESPONDENT FOR A SUM OF RS.17,36,70,360/- EXHIBIT P3 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE REFERENCE NO.FC1404/AY 2013-14 DTD.14.4.2016 EXHIBIT P3(A) TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED NIL. EXHIBIT P4 TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED NIL. 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 5.10.2016 EXHIBIT P6 TRUE COPY OF THE PETITION FOR STAY FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 02.03.2017 EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD.7.4.2017 EXHIBIT P8 TRUE COPY OF THE ORDER BEARING NO.C.NO.701/J/CIT/STAY/86/2016-17 DATED 24.1.2018 PASSED BY THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE LETTER BEARING NO.AAACK9533D/CIR-1(1)/TVM/17-18 DATED 12.02.2018 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/- PA to Judge hmh P.B.SURESH KUMAR, J. ...................................................... W.P.(C).No.5527 of 2018 ...................................................... Dated this the 19th day of February, 2018

JUDGMENT Petitioner is an assessee under the Income Tax Act, 1961(the Act) on the files of the first respondent. The self assessment made by the petitioner for the year 2013-14 has been revised in terms of Section 143(3) of the Act as per Ext.P1 order. Petitioner challenged Ext.P1 order in Ext.P3 appeal before the third respondent. Ext.P3(a) is the application for stay filed by the petitioner before the third respondent in the said appeal. When the matter was pending before the third respondent, proceedings have been initiated by the first respondent for realisation of the amount covered by Ext.P1 order. The petitioner then preferred an application for stay before the first respondent, invoking the power under Section 220(6) of the Act. In terms of Ext.P5 order, the first respondent granted the stay sought for by the petitioner on condition that the petitioner shall pay 15% of the amount covered by Ext.P1 order. Aggrieved by Ext.P5, the petitioner : 2 : filed a review petition before the second respondent and in terms of Ext.P8 order, the second respondent directed the petitioner to pay 20% of the amount covered by Ext.P1 order. The petitioner is aggrieved by Exts.P5 and P8 orders. According to the petitioner, in the light of Ext.P10 order passed by the Income Tax Appellate Tribunal in respect of the assessment of the petitioner for some of the previous years, the petitioner is entitled to an absolute stay in the matter. The petitioner, therefore, seeks appropriate directions in this regard, in this writ petition.

Heard the learned counsel for the petitioner as also the learned Standing Counsel for the respondents.

In so far as the stay petition preferred by the petitioner in Ext.P3 appeal is pending consideration, I deem it appropriate to dispose of the writ petition directing the third respondent to take a decision on Ext.P3(a) stay petition preferred by the petitioner in Ext.P3 appeal. This shall be done within one month from the date of receipt of a copy of this judgment. Needless to say that when a decision is taken as directed above, the third respondent shall certainly advert to Ext.P10 order passed by the Tribunal. Needless also to say that : 3 : until orders are passed as directed above, further proceedings for realisation of the amounts covered by Ext.P1 order shall be deferred. P.B. SURESH KUMAR, JUDGE hmh

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