SHALOM CHARITABLE MINISTRIES OF INDIA vs. THE ASSISTANT COMMISSIONER OF INCOME TAX

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WP(C)/37945/2018HC KeralaKLHC01088059201823 November 2018Author: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU4 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that it cannot interfere with orders passed by statutory authorities merely upon a request, especially when those authorities are exercising their discretion legitimately. The court noted that the petitioner had failed to appear before the appellate authority despite notices being issued. In light of the petitioner's non-compliance and the appellate authority's reasoned exercise of discretion in imposing a 20% pre-deposit, the court found no grounds to intervene. Therefore, the writ petition was dismissed. No specific issue was left undecided; the court ruled on the maintainability of the writ petition against the appellate authority's discretionary order.

What were the facts?

The petitioner, M/s. Shalom Charitable Ministries of India, filed a writ petition challenging an order passed by the appellate authority concerning their stay petition for the assessment year 2010-11. The petitioner had previously filed a statutory appeal and a stay petition against an adverse assessment order. This court had previously directed the appellate authority to consider the stay petition expeditiously. The petitioner's counsel argued that the pre-condition of depositing 20% of the disputed tax was onerous. The Revenue's counsel stated that the Commissioner of Income Tax (Appeals) issued notices after the previous court direction, but the petitioner failed to appear. Consequently, the appellate authority passed an order based on available material, imposing a 20% pre-deposit.

What were the issues?

1. Whether the imposition of a 20% pre-deposit as a pre-condition for considering the stay petition is onerous, thereby warranting interference by the High Court under its writ jurisdiction? (Question of law and fact, concerning the exercise of discretion by statutory authorities). Assessee's Contentions: The petitioner argued that the 20% pre-deposit imposed as a pre-condition for the stay petition was onerous. Revenue's Contentions: The Revenue contended that the appellate authority had issued notices to the petitioner as per the court's earlier direction, but the petitioner failed to appear. The appellate authority passed the impugned order, which imposed a 20% pre-deposit, considering the petitioner's non-appearance and the lack of any attenuating circumstances presented by them. The Revenue argued that the pre-deposit was well-considered and confined to 20%.

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 DAMA SESHADRI NAIDU FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940 WP(C).No. 37945 of 2018 PETITIONER/S: M/S.SHALOM CHARITABLE MINISTRIES OF INDIA SHALOM RESIDENTIAL PUBLIC SCHOOL, SHALOM NAGAR, GOPALAPURAM ROAD, CHITTUR P.O., PALAKKAD, REPRESENTED BY ITS MANAGING TRUSTEE, K.T.THOMAS. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1, PALAKKAD-678 001. 2 THE COMMISIONER OF INCOME TAX (APPEALS) KAKKANAD, ERNAKULAM - 682 030. 3 THE COMMISSIONER OF INCOME TAX (APPEALS) 3RD FLOOR, AAYKAR BHAVAN, THRISSUR - 680 001. 4 THE MANAGER DHANALAKSHMI BANK, PARLI BRANCH, PALAKKAD - 678 612. OTHER PRESENT: SC SRI. JOSE JOSEPH., CK. KARUNAKARAN W.P.(C) No. 37945/2018 -2- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T For the assessment year 2010-11 under the Income Tax Act, the petitioner suffered the Ext.P1 adverse assessment order. After filing the Ext.P2 statutory appeal along with the Ext.P3 stay petition, it filed W.P.(C) No.6931 of 2018 and secured a direction from this Court that the appellate authority should consider the petitioner's stay petition expeditiously.

2.

Now, the petitioner has once again come before this Court assailing the order the appellate authority passed in the Ext.P3 stay petition. The petitioner's counsel contends that imposition of 20% of the disputed tax as pre-condition is onerous.

3.

In response, the Standing Counsel for the Department submits that by complying with the judgment in W.P.(C) No.6931 of 2018, the Commissioner of Income Tax (Appeals) issued four notices to the petitioner. But no representative on its part turned up before -3- the appellate authority. Then, with no other material on record, the appellate authority passed the Ext.P4 order. According to the Standing Counsel, it is well considered as the pre-deposit is confined to only 20%, despite the petitioner's failing to appear before the authority and supplying any attenuating circumstances, for the authority to take a different view.

4.

Under these circumstances, I hold that this Court cannot, for mere asking, interfere with the orders passed by the statutory authorities, especially, exercising their discretion legitimately. I, therefore, dismiss the writ petition. DAMA SESHADRI NAIDU JUDGE jjj -4-

Appendix — schedule of exhibits
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11. EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P3 COPY OF STAY PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 3RD RESPONDENT.

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