MAYYIL SERVICE CO-OPERATIVE BANK LTD. vs. THE INCOME TAX OFFICER

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936 WP(C).No. 16698 of 2014 (J) ---------------------------- PETITIONER : ------------------ MAYYIL SERVICE CO-OPERATIVE BANK LIMITED, P.O.MAYYIL, KANNUR-670 602 KANNUR DISTRICT REPRESENTED BY ITS SECRETARY. BY ADV. SRI.O.D.SIVADAS RESPONDENTS : ---------------------- 1. THE INCOME TAX OFFICER, WARD NO.4, KANNUR, KANNUR DISTRICT 670 001. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) MANANCHIRA, KOZHIKODE - 673 001 BY ADV. SMT. SHOBA ANNAMMA EAPEN BY SRI.JOSE JOSEPH, SC, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BP

WP(C).NO. 16698 OF 2014 (J) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1: TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08. EXT.P2 : TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2008-09 EXT.P3: TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11 EXT.P4: TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER AGAINST EXT.P1 DATED 3-4-013. EXT.P5: TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER AGAINST EXT.P2 DATED 3-4-013 EXT.P6: TRUE COPY OF THE APPEAL PREFERRED BY THE PETITIONER AGAINST EXT.P3 DATED 3-4-013. EXT.P7: TRUE COPY OF THE ORDER DT.28-2-2014 OF THE 2ND RESPONDENT. EXT.P8: TRUE COPY OF THE PETITION DATED 3-3-2014 SUBMITTED BY THE PETITIONER. EXT.P9: TRUE COPY OF THE ORDER DATED 26-3-2014 ISSUED BY THE 1ST RESPONDENT. RESPONDENT(S)' EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE BP

K. VINOD CHANDRAN, J. ===================== W.P.(C) No. 16698 of 2014 ====================== Dated this the 1st day of July, 2014 J U D G M E N T The petitioner is aggrieved by the order passed under Section 220(6) of the Income Tax Act, 1961, by the Assessing Officer, which is evidenced by Ext.P9. Ext.P9 directs payment of 50% of the demand. The merits of the subject matter of the appeal need not be dealt with at this point of time. What is relevant is that, the petitioner had filed the appeals for the years 2007-08, 2008-09 and 2010-11, evidenced by Exts.P4, P5 and P6. Stay applications were moved in the appeals. However by Ext.P7 order, the Appellate Authority directed the petitioner to approach the Assessing Officer under Section 220(6) of the Act. 2. Definitely, the assessee could in the circumstance of even an order being passed by the Appellate Authority, approach the Assessing Officer under Section 220(6) of the Act, at his option. The difficulties of the assessee to make

W.P.(C) No. 16698 of 2014 2 the payments immediately could be raised and such power of the Assessing Authority can also be invoked. That is the power conferred on the Assessing Officer to exercise his discretion even when an appeal is said to be pending before the Appellate Authority. But, however, when a stay application has been moved before the Appellate Authority, the Appellate Authority cannot abdicate its powers and direct the assessee/appellant to approach the Assessing Officer under Section 220(6) of the Act. In such circumstance, though the petitioner places two decisions dilating upon the powers under Section 220(6) of the Act, that need not be considered at this stage. 3. What is evident is that, the Appellate Authority was moved with a stay application, which necessarily the Appellate Authority has to consider on a prima facie consideration of the merits of the matter. In such circumstance, there shall be a direction to the Appellate Authority to consider such stay applications for the

W.P.(C) No. 16698 of 2014 3 respective years, after affording an opportunity of hearing to the petitioner herein. The Appellate Authority shall so consider and pass orders within a period of two months from today, Exts.P7 and P9 shall stand set aside to facilitate such consideration by the Appellate Authority. The demand and recovery shall therefore be governed by the orders passed in the stay applications by the Appellate Authority. The Writ Petition is disposed of. Sd/-

K. VINOD CHANDRAN, JUDGE SB // True Copy // P. A To Judge.