ITHITHANAM SERVICE CO-OPERATIVE BANK LTD vs. COMMISSIONER OF INCOME TAX (APPEALS)

PDF · subscribers
WP(C)/31209/2019HC KeralaKLHC01081654201919 November 2019Author: HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court, upon considering the facts, circumstances, and submissions, found that in similar cases, it had directed the Appellate Authority to dispose of the appeals. Consequently, the Court quashed the impugned stay order (Ext.P6). It directed the 1st respondent (Commissioner of Income Tax (Appeals)) to consider and pass orders on the petitioner's appeal (Ext.P3) within six months from the date of receiving a copy of the judgment, after hearing the petitioner. The Court also ordered that recovery steps for the amounts confirmed by the assessment order (Ext.P1) would be kept in abeyance until the 1st respondent passed and communicated their order. The petitioner was directed to furnish copies of the writ petition and the judgment to the 1st respondent for further action.

What were the facts?

The petitioner, M/s. Ithithanam Service Co-operative Bank Ltd., filed a writ petition before the High Court of Kerala challenging a stay order (Ext.P6) issued by the Commissioner of Income Tax (Appeals) (1st respondent). The petitioner had appealed against an assessment order (Ext.P1) passed under the Income Tax Act. The 1st respondent, in the stay petition (Ext.P4) filed along with the appeal (Ext.P3), directed the petitioner to pay 20% of the confirmed demand as a pre-condition for granting a stay against the recovery of the balance amounts pending the appeal's disposal. The petitioner contended that this stay order was passed without proper application of mind. The issue involved the disallowance of deduction under Section 80P of the Income Tax Act.

What were the issues?

1. Whether the stay order (Ext.P6) passed by the Commissioner of Income Tax (Appeals) is vitiated by a non-application of mind? (Question of law and fact) The petitioner argued that the stay order was passed without a proper application of mind. They further contended that in similar matters concerning the disallowance of deduction under Section 80P of the Income Tax Act, the High Court had directed the Appellate Authority to consider and pass orders on the appeal while granting a stay against recovery pending disposal. The revenue, represented by the Standing Counsel, made submissions which are not detailed in the judgment.

Which sections of the Income-tax Act were involved?

Section 80P

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 A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 19TH DAY OF NOVEMBER 2019/28TH KARTHIKA, 1941 W.P(C).No.31209 OF 2019(A) PETITIONER: M/S.ITHITHANAM SERVICE CO-OPERATIVE BANK LTD., MALAKUNNAM P.O, CHANGANCHERRY, KOTTAYAM 686 535 REPRESENTED BY ITS' SECRETARY MR. KURIAN POTHEN. BY ADVS.SRI.A.KUMAR SRI.P.J.ANILKUMAR SMTG.MINI(1748) SRI.P.S.SREE PRASAD SRI.AJAY V.ANAND SHRI.ABRAHAM JOB RESPONDENTS: 1 COMMISSIONER OF INCOME TAX (APPEALS) PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTAYAM 686 001 2 INCOME TAX OFFICER, OFFICE OF THE INCOME TAX OFFICER, WARD 4, TIRUVALLA 689 101 BY SRI.JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.31209/2019 : 2 :

J U D G M E N T Against Ext.P1 assessment order under the Income Tax Act, the petitioner had preferred Ext.P3 appeal along with Ext.P4 stay petition before the 1st respondent. By Ext.P6 stay order, the 1st respondent directed the petitioner to pay 20% of the confirmed demand as a pre-condition for grant of stay against recovery of the balance amounts pending disposal of the appeal. It is the contention of the learned counsel for the petitioner that Ext.P6 stay order is vitiated by a non-application of mind, and further, the issue involved relates to the disallowance of deduction under Section 80P of the Income Tax Act, where, in similar matters, this Court has directed the Appellate Authority to consider and pass orders in the appeal while granting stay against recovery pending disposal of the appeal.

2.

I have heard the learned counsel for the petitioner as also the learned Standing Counsel for the respondents. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, and finding

W.P.(C).No.31209/2019 : 3 : that in similar cases, this Court has directed the Appellate Authority to dispose the appeal, I dispose the writ petition by quashing Ext.P6 order, and directing the 1st respondent to consider and pass orders on Ext.P3 appeal within an outer time limit of six months from the date of receipt of a copy of this judgment, after hearing the petitioner. It is made clear that till such time as orders are passed by the 1st respondent as directed, and the order communicated to the petitioner, recovery steps for recovery of amounts confirmed against the petitioner by Ext.P1 assessment order shall be kept in abeyance. The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 1st respondent, for further action. A.K.JAYASANKARAN NAMBIAR JUDGE prp/19/11/19

W.P.(C).No.31209/2019 : 4 :

Appendix — schedule of exhibits
APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 07-12-2018. EXHIBIT P2 TRUE COPY OF THE NOTICE OF DEMAND DATED 07-12-2018. EXHIBIT P3 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 05-01-2019 EXHIBIT P4 TRUE COPY OF APPLICATION FOR STAY DATED 23-05-2019 EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC NO.2674 OF 2019 DATED 24-05-2019 EXHIBIT P6 RESPONDENTS EXHIBITS: TRUE COPY OF ORDER DATED 16-10-2019. NIL. //TRUE COPY// P.S. TO JUDGE

More judgments on Section 80P

All 5,069 judgments and leading authorities on Section 80P →

Recent GST High Court judgments

Search GST case law →