CHIRAMEL KUNJAVOO CHAKKUNNY GEORGE, vs. THE INCOME TAX OFFICER,

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WP(C)/35487/2018HC KeralaKLHC01081829201831 October 2018Author: HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU4 pages
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What did the High Court hold?

The High Court found no legal infirmity in the conditional order of stay (Ext.P6) passed by the 2nd respondent. While acknowledging the petitioner's grievance regarding the lack of prior notification, the Court did not deem it a sufficient ground to set aside the order. The Court noted that the 20% precondition for stay was within the authority's jurisdiction. In a slight modification of the order, the High Court extended the deadline for the first installment payment to November 8, 2018, as the original deadline was expiring on the day of the hearing. The rest of the payment schedule was to remain undisturbed. The Court also directed the appellate authority to dispose of the appeal expeditiously. No specific issue was left undecided.

What were the facts?

The petitioner, Chiramel Kunjavoo Chakkunny George, filed a writ petition challenging a conditional order of stay granted by the 2nd respondent, the Commissioner of Income Tax (Appeals). This order required the petitioner to pay 20% of the disputed amount to have further proceedings stayed. The petitioner's primary grievance was that the 2nd respondent had not notified him before considering his stay application, despite a previous High Court order directing such a hearing. The Revenue contended that the 20% precondition was within the authority's jurisdiction and that the petitioner was allowed to pay it in four installments. The High Court noted that the last date for the first installment was expiring on the day of the hearing.

What were the issues?

1. Whether the 2nd respondent, the Commissioner of Income Tax (Appeals), erred by not providing the petitioner with a prior notification and hearing before disposing of his stay application, contrary to the High Court's earlier direction? Assessee's Contention: The petitioner argued that the 2nd respondent failed to notify him before considering his stay application, violating a previous High Court order. The petitioner sought to challenge the conditional order of stay. Revenue's Contention: The Revenue contended that the imposition of a 20% precondition for the stay was within the jurisdictional powers of the authority. They also highlighted that the authority had been considerate by allowing the petitioner to pay this 20% in four installments.

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 WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940 WP(C).No. 35487 of 2018 PETITIONER/S: CHIRAMEL KUNJAVOO CHAKKUNNY GEORGE, AGED 74 YEARS S/O CHAKKUNNY, CHIRAMEL KUNJAVOO HOUSE, KIZHAKKUMPATTUKARA, EAST FORT PO,THRISSUR PIN- 680005. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.M.RAJAGOPAL RESPONDENT/S: 1 THE INCOME TAX OFFICER, WARD -2(2),OFFICE OF THE JOINT COMMISSIONER INCOME TAX, RANGE-2, AAYAKAR BHAVAN, S.T.NAGAR, THRISSUR -680001. 2 THE COMMISSIONER OF INCOME TAX (APPEALS), AAYAKAR BHAVAN, S.T.NAGAR, THRISSUR -680001. SC. SRI. JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35487 of 2018 2

JUDGMENT Earlier this Court through the Ext.P5 judgment required the authorities to consider the petitioner's stay application, after a notice to the petitioner. The 2nd respondent did dispose of the petitioner's stay petition; he granted a conditional order of stay. The petitioner was required to pay 20% to have the further proceedings stayed. Assailing the Ext.P6 order of stay, the petitioner has filed this writ petition.

2.

The petitioner's singular grievance is that though this Court earlier directed the 2nd respondent to hear the petitioner before his considering the stay application, he did not notify the petitioner.

3.

In response to the submissions made by the petitioner's counsel, the learned Standing Counsel for the Department has submitted that the imposition of 20% of precondition is well with the jurisdiction of the authority. Besides that the authority has been considerate enough, to let the petitioner pay that 20% in four instalments.

4.

I, therefore, see no legal infirmity in the Ext.P6. At any rate, the last date of the first instalment is expiring today. So I only hold in partial modification of the Ext.P6 order of stay that the petitioner must

WP(C).No. 35487 of 2018 3 pay that instalment on 08.11.2018. The rest of the payment schedule remains undisturbed. The appellate authority may dispose of the appeal expeditiously. DAMA SESHADRI NAIDU JUDGE

WP(C).No. 35487 of 2018 4

Appendix — schedule of exhibits
APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER DATED 26.12.2017 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16. EXHIBIT P2 COPY OF APPEAL MEMORANDUM AGAINST EXT.P1 FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P3 COPY OF STAY PETITION FILED BEFORE THE 2ND RESPONDENT ALONG WITH EXT. P2 APPEAL. EXHIBIT P4 COPY OF ORDER DATED 24.2.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 COPY OF JUDGMENT DATED 8.3.2018 OF THIS HON'BLE COURT IN WPC.NO.7842 OF 2018. EXHIBIT P6 RESPONDENT'S EXHIBIT COPY OF ORDER DATED 18.9.2018 ISSUED BY THE 2ND RESPONDENT. NIL //True copy// PA to Judge

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