USAPH K.MOOSA vs. THE INCOME TAX OFFICER

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WP(C)/37502/2018HC KeralaKLHC01087009201819 November 2018Author: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU3 pages
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What did the High Court hold?

The High Court acknowledged that it generally does not interfere with the discretion of the Commissioner of Income Tax (Appeals) in imposing conditions for a stay, especially when such conditions have statutory sanction. However, considering the persistent plea of the petitioner's counsel regarding the petitioner's acute financial problems, the Court decided to take a considerate view. The Court directed that the petitioner shall deposit the 20% of the demanded tax, as stipulated in Ext.P4, in three equal monthly installments, commencing from December 2018. Until these installments are deposited, the conditional interim order (Ext.P4) will continue to protect the petitioner. Subsequently, upon the petitioner depositing the amount as per the revised schedule, the Tribunal may proceed further with the case. No issue was expressly left undecided.

What were the facts?

The petitioner, Usaph K. Moosa, proprietor of M/s. Rahmania Traders, is a dealer under the Income Tax Act. He filed an appeal before the Commissioner of Income Tax (Appeals) (2nd respondent) challenging assessment proceedings. The 2nd respondent passed a conditional interim order (Ext.P4), directing the petitioner to deposit 20% of the demanded tax by October 31, 2018, to sustain a stay. The petitioner, facing financial difficulties, filed a writ petition before the High Court of Kerala seeking more time to comply with this direction. The Income Tax Officer (1st respondent) and the Karur Vysya Bank (3rd respondent) were also impleaded.

What were the issues?

1. Whether the High Court should interfere with the discretion of the Commissioner of Income Tax (Appeals) in imposing conditions for a stay, particularly a condition requiring a deposit of 20% of the demanded tax. Assessee's contention: The petitioner argued that he was facing acute financial problems and sought more time to comply with the deposit direction in Ext.P4. The petitioner's counsel pleaded for a considerate view of the situation. Revenue's contention: The judgment does not record any specific contentions from the revenue regarding the petitioner's plea for more time or the validity of the conditional interim order. The revenue's role in this writ petition was primarily as a respondent to the petitioner's challenge.

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 MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940 WP(C).No. 37502 of 2018 PETITIONER: USAPH K.MOOSA AGED 52 YEARS S/O MOOSA, PROPRIETOR, M/S RAHMANIA TRADERS, 12/10, KAMMANTHARA HOUSE, VANDAZHI P.O., ALATHUR, PALAKKAD - 678 541. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE INCOME TAX OFFICER WARD -5, PALAKKAD- 678 001. 2 THE COMMISSIONER OF INCOME TAX (APPEALS) 3RD FLOOR, AAYKAR BHAVAN, THRISSUR - 680 001. 3 THE MANAGER KARUR VYSYA BANK, VELLAN STREET, SULTHANPETA, PALAKKAD - 678 001. SC SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37502 of 2018 2

JUDGMENT Assailing the assessment proceedings, the petitioner, a dealer under the Income Tax, filed an appeal before the 2nd respondent. Now, assailing the Ext.P4 conditional interim order the 2nd respondent passed, the petitioner has filed this writ petition.

2.

After initially setting out the petitioner's financial difficulties, the learned counsel nevertheless pleads for some more time to comply with the directions in the Ext.P4: to deposit 20% of the demanded tax by 31-10-2018. 3. I stress the obvious: this court never revels in interfering with the Tribunal's discretion in imposing any condition to sustain a stay, more particularly when it has statutory sanction. Nevertheless, given the persistent plea the petitioner's counsel advanced that the petitioner has been facing acute financial problems, this court may take a considerate view of the situation.

4.

I, therefore, dispose of the writ petition holding that the petitioner shall deposit the amount, as directed in the Ext.P4, in three equal monthly installments, starting from December 2018. Until then, the Ext.P4 will protect the petitioner. And thereafter, if the petitioner deposits the amount, the Tribunal may proceed further with the case. DAMA SESHADRI NAIDU mpm JUDGE

WP(C).No. 37502 of 2018 3

Appendix — schedule of exhibits
APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2013-14. EXHIBIT P1 A COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2013-14. EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER FOR THE YEAR 2013-14. EXHIBIT P2 A COPY OF APPEAL FILED BY THE PETITIONER FOR THE YEAR 2013-14. EXHIBIT P3 COPY OF STAY PETITION FILED BY THE PETITIONER FOR THE YEAR 2013-14. EXHIBIT P3 A COPY OF STAY PETITION FILED BY THE PETITIONER FOR THE YEAR 2013-14. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// PA TO JUDGE mpm

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