ERNAKULAM CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. vs. THE ASSISTANT COMMISSIONER OF INCOME TAX,

PDF · subscribers
WP(C)/3306/2020HC KeralaKLHC01009276202006 February 2020Author: HONOURABLE MR. JUSTICE ALEXANDER THOMAS6 pages
AI SummaryPartly Allowed

What did the High Court hold?

The High Court, following a Division Bench judgment in W.A. No. 1529/2019 and a Full Bench decision in Mavilayi Service Co-operative Service Bank Ltd. v. Commissioner of Income Tax, Calicut [2019 (2) KHC 287], held that the insistence for payment of a portion of the amount demanded as a condition for grant of stay need not be insisted upon in similar circumstances. The Court directed the 1st appellate authority to ensure the final disposal of the appeals (Exts. P5, P6, P7, and P8) without delay, after affording a reasonable opportunity of being heard to the petitioner. Crucially, the Court ordered that until final orders are passed disposing of these appeals, all coercive steps for the enforcement of the assessment orders shall be kept in abeyance. The writ petition was disposed of with these directions.

What were the facts?

The petitioner, Ernakulam Co-operative Agricultural and Rural Development Bank Ltd., filed a writ petition before the High Court of Kerala seeking a direction to the Assistant Commissioner of Income Tax (1st respondent) to refrain from taking coercive proceedings for recovery of demands raised by assessment orders for Assessment Years 2008-09 to 2011-12. The petitioner also sought a stay on the operation of these assessment orders and demand notices pending disposal of their appeals and stay petitions before the Commissioner of Income Tax (Appeals) (2nd respondent). The assessment orders and demand notices are collectively referred to as Exhibit P1 to P4.

What were the issues?

1. Whether the High Court should issue a Writ of Mandamus directing the 1st respondent to refrain from taking coercive proceedings for recovery of tax demands for Assessment Years 2008-09 to 2011-12 pending disposal of appeals before the 2nd respondent. 2. Whether the High Court should stay the operation of the assessment orders and demand notices for Assessment Years 2008-09 to 2011-12 pending disposal of the writ petition. Assessee's Contention: The petitioner sought to prevent coercive recovery actions and stay the assessment orders pending appeal. They relied on the principle that insistence on payment of a portion of the demand as a condition for stay need not be insisted upon in certain cases. Revenue's Contention: The judgment does not record any specific contentions made by the revenue. However, the revenue was represented by a Standing Counsel.

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 ALEXANDER THOMAS THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947 WP(C).No.3306 OF 2020(K) PETITIONER: ERNAKULAM CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. RURAL DEVELOPMENT BANK LTD., ALUVA-PRESENTLY KNOWN AS ALUVA CO-OP. AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.E-87, BYE PASS JUNCTION, ALUVA-680101, REPRESENTED BY ITS SECRETARY LIGY P. SCARIA. BY ADVS. SRI.T.M.SREEDHARAN (SR.) SMT.NISHA JOHN SRI.V.P.NARAYANAN RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF INCOME TAX, WARD I, ALUVA RANGE, R.S. ROAD, ALUVA -683101. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), 28/243, POORNIMA, PANAMPILLY NAGAR, COCHIN-682036. OTHER PRESENT: SRI.CHRISTOPHER ABRAHAM, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.3306/2020 2 ALEXANDER THOMAS, J. ------------------------------------------- W.P.(C)No.3306 of 2020 ---------------------------------------------- Dated this the 6th day of February, 2020

JUDGMENT The prayers in the above Writ Petition (Civil) are as follows: “(i) To issue a Writ of Mandamus or any other appropriate writ, order or direction, directing the 1st respondent to refrain from taking coercive proceedings for recovery of the demand pursuant to Exhibit P1 to P4 Assessment Orders and demand notices for the Assessment Years 2008-09 to 2011-12 pending disposal of the appeals/stay petitions before the 2nd respondent. (ii) To stay the operation of Exts.P1 tp P4 Assessment Orders for the Assessment Years 2008-09 to 2011-12 and the demand pursuant thereto, pending disposal of W.P.(C).”

2.

Heard Smt. Nisha John, learned counsel appearing for the petitioner and Sri.Christopher Abraham, learned Standing Counsel for the Income Tax Department appearing for the respondents.

3.

In similar circumstances, a Division Bench of this Court in the judgment dated 1.7.2019 in W.A.No. 1529/2019 has taken the view that the insistence for payment of a portion of the amount demanded, as a condition for grant of stay, need not be insisted in cases as in the instant one and that the Division Bench, for reasons stated therein, has ordered that it is for the appellate authority to take a decision on the statutory appeal at the earliest and that until the final decision is rendered by the appellate authority in the statutory appeal, coercive steps for recovery and collection of the impugned tax shall be kept in abeyance in the light of the dictum laid down by the Full Bench of this Court in Mavilayi Service Co-operative Service Bank Ltd., v. Commissioner of Income Tax, Calicut [2019 (2) KHC 287]. The Division Bench in the abovesaid judgment dated 1.7.2019 in W.A.No. 1529/2019 has also dealt with the reasons for taking such a view for making such an interim arrangement pending disposal of the main appeal by the statutory appellate authority concerned. The said decision of the Division Bench of this Court in W.A.No. 1529/2019 has been followed by this Court in a series of other cases as in the judgment dated 10.1.2020 in W.P.(C).No.523/2020. Accordingly, following the line of directions and orders already passed by the Division Bench of this Court in the judgment dated 1.7.2019 in W.A.No. 1529/2019 as well as various other judgments rendered by this Court, following the said directions and orders of the Division Bench in the matter of the interim arrangement till the disposal of the main statutory appeal, etc., following orders and directions are issued: It is ordered that the 1st appellate authority shall ensure final disposal of Exts.P5, P6, P7 and P8 appeals after affording reasonable opportunity of being heard to the petitioner without much delay and within a reasonable time limit that may be fixed appropriately by the said appellate authority. However, in the interest of justice it is ordered that until final orders are passed disposing of Exts.P5, P6, P7 and P8 appeals, all coercive steps for the enforcement of the assessment order impugned in the abovesaid appeal shall be kept in abeyance. With these observations and directions, the Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS, JUDGE. acd

Appendix — schedule of exhibits
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE DATED 29/03/2016 FOR THE ASSESSMENT YEAR 2008-09 ISSUED BY THE INCOME TAX OFFICER, WARD-I, ALUVA. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE DATED 29/03/2016 FOR THE ASSESSMENT YEAR 2009-10 ISSUED BY THE INCOME TAX OFFICER, WARD-I, ALUVA. EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE DATED 29/03/2016 FOR THE ASSESSMENT YEAR 2010-11 ISSUED BY THE INCOME TAX OFFICER, WARD-I, ALUVA. EXHIBIT P4 TRUE COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE DATED 29/03/2016 FOR THE ASSESSMENT YEAR 2011-12 ISSUED BY THE INCOME TAX OFFICER, WARD-I, ALUVA. EXHIBIT P5 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY-2008-09. EXHIBIT P5 (A) TRUE COPY OF THE STAY PETITION OF FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY-2008-09. EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY-2009-10. EXHIBIT P6 (A) TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY-2009-10. EXHIBIT P7 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY-2010-11. W.P.(C)No.3306/2020 6 EXHIBIT P7(A) TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY-2010-11. EXHIBIT P8 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY-2011-12. EXHIBIT P8(A) TRUE COPY OF THE STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR AY-2011-12.

Latest GST High Court judgments

Search GST case law →