Kerala High Court
M/S Rainbow Realtors vs Asst Commissioner Of Income Tax on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 30TH DAY OF NOVEMBER 2021/ 9TH AGRAHAYANA, 1943
WP(C) NO. 9270 OF 2021
PETITIONER:
M/S RAINBOW REALTORS,
RAINBOW SUITES, BELLARD ROAD,
KANNUR - 670001,
REPRESENTED BY ITS MANAGING PARTNER
ETTOOL KALATHIL ABDULHAMEED.
BY ADV S.ARUN RAJ
RESPONDENTS:
1 ASST COMMISSIONER OF INCOME TAX,
CIRCLE - 1, KANNUR - 670006,
2 COMMISSIONER OF INCOME TAX(APPEALS)
AAYAKAR BHAVAN, MANANCHIRA,
KOZHIKODE - 673001,
3 THE PRINCIPAL COMMISSIONER OF INCOME TAX,
AAYAKAR BHAVAN, MANANCHIRA,
KOZHIKODE - 673001.
BY ADV.CHRISTOPHER ABRAHAM-SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.9270/21
-:2:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.9270 of 2021
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Dated this the 30th day of November, 2021
JUDGMENT
Petitioner is an assessee under the Income Tax Act, 1961. By
four different assessment orders for the assessment years 2011-12,
2012-13, 2015-16 and 2016-17, petitioner was saddled with a huge
liability. The orders were challenged in appeal before the second
respondent.
2. In the meantime, since coercive proceedings were initiated,
including for two more additional assessment years of 2013-14 and
2014-15, petitioner approached this Court through W.P.(C) No.2193
of 2019 seeking stay of the recovery proceedings. By judgment
dated 24.01.2019, this Court directed the stay petitions to be
disposed of by the appellate authority. Thereafter, the second
respondent, by Ext.P5 order, directed the petitioner to deposit 20% of
the amount demanded in the assessment orders, for all the years in
four instalments. When the said order was challenged before this
W.P.(C) No.9270/21
Court in W.P.(C) No.15061 of 2019, by judgment dated 20.06.2019,
this Court found that the condition of 20% directed to be deposited
was not arbitrary, however the number of instalments were increased
to six instalments. While extending the instalment facility to six
instalments, this Court observed that the balance of demand shall
stand stayed for six months or till the disposal of the appeal,
whichever is earlier.
3. Though all the appeals were posted for hearing before the
2nd respondent on 19.11.2019, due to a technical issue, only the
appeals relating to the assessment years 2013-14 and 2014-15
alone were heard. The remaining appeals, i.e., those for the
assessment years 2011-12, 2012-13, 2015-16 and 2016-17 could not
be heard on the said date. Thereafter, by order dated 26.02.2020,
the appeals relating to the assessment years 2013-14 and 2014-15
were disposed of.
4. Petitioner contends that, unfortunately, since the appeals for
the assessment years 2011-12, 2012-13, 2015-16 and 2016-17 could
not be disposed of and the interim order of stay granted by this Court
prescribed a time limit of six months or till the disposal of the appeal
whichever was earlier, the stay granted by this Court expired in the
W.P.(C) No.9270/21
meantime. It is in such circumstances that the petitioner has
approached this Court seeking a direction to dispose of the appeals
for the aforesaid years in a time bound manner and also to restrain
the continuance of the coercive proceedings, till such orders are
passed.
5. I have heard the learned counsel for the petitioner, Sri.Arun
Raj S., as well as the learned Standing Counsel Sri.Christopher
Abraham.
6. On a consideration of the issues arising in the case, I am of
the view that since the petitioner had already paid the 20% directed
to be deposited, it is only reasonable that the interim order continues
till the disposal of the appeal. The order directing deposit of 20% of
the disputed tax is an exercise of discretion. When such a discretion
was exercised, a direction for any further deposit is not warranted in
the facts and circumstances of the case.
7. In view of the above, the interim order dated 11.03.2019 in
ITA-11222, ITA-11225, ITA-11227, ITA-11232/CIT(A)/CLT/2016-17,
ITA No.11232, ITA 11311/CIT(A)/CLT/2018-19 as ordered through
Ext.P5, shall stand extended until disposal of the said appeals.
W.P.(C) No.9270/21
8. Since the appeals preferred by the petitioner for the
assessment years 2011-12, 2012-13, 2015-16 and 2016-17 are still
pending consideration before the second respondent, it is essential
in the interests of justice that the said appeals be directed to be
disposed of in a time bound manner.
9. Accordingly while the interim stay already directed will
continue till disposal of the appeals, there will be a direction to the
second respondent to consider and pass appropriate orders on the
appeals filed by the petitioner relating to the assessment years 2011-
12, 2012-13, 2015-16 and 2016-17, as expeditiously as possible, at
any rate, within a period of six months from the date of receipt of a
copy of this judgment.
The writ petition is disposed of as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
W.P.(C) No.9270/21
APPENDIX OF WP(C) 9270/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED
31.12.2016 PASSED BY THE 1ST RESPONDENT
FOR THE YEAR 2011-12.
EXHIBIT P1(a) TRUE COPY OF THE ASSESSMENT ORDER DATED
31.12.2016 PASSED BY THE 1ST RESPONDENT
FOR THE YEAR 2012-13.
EXHIBIT P1(b) TRUE COPY OF THE ASSESSMENT ORDER DATED
29.12.2017 PASSED BY THE 1ST RESPONDENT
FOR THE YEAR 2015-16.
EXHIBIT P1(c) TRUE COPY OF THE ASSESSMENT ORDER DATED
28.12.2018 PASSED BY THE DY.CIT. ASMNT.
FOR THE AY 2016-17.
EXHIBIT P2 TRUE COPY OF APPEAL MEMORANDUM ALONG
WITH THE GROUND OF APPEAL FILED BEFORE
THE 2ND RESPONDENT BY THE PETITIONER FOR
THE AY 2011-12.
EXHIBIT P2(a) TRUE COPY OF THE APPEAL MEMORANDUM ALONG
WITH THE GROUND OF APPEAL FILED BEFORE
THE 2ND RESPONDENT BY THE PETITIONER FOR
THE AY 2012-13.
EXHIBIT P2(b) TRUE COPY OF THE APPEAL MEMORANDUM ALONG
WITH THE GROUND OF APPEAL FILED BEFORE
THE 2ND RESPONDENT BY THE PETITIONER FOR
THE AY 2015-16.
EXHIBIT P2(c) TRUE COPY OF THE APPEAL MEMORANDUM ALONG
WITH THE GROUND OF APPEAL FILED BEFORE
THE 2ND RESPONDENT BY THE PETITIONER FOR
THE AY 2016-17.
EXHIBIT P3 TRUE COPY OF STAY PETITION SUBMITTED BY
THE PETITIONER TO THE 2ND RESPONDENT FOR
THE AY 2011-12.
EXHIBIT P3(a) TRUE COPY OF STAY PETITION SUBMITTED BY
THE PETITIONER TO THE 2ND RESPONDENT FOR
W.P.(C) No.9270/21
THE AY 2012-13
EXHIBIT P3(b) TRUE COPY OF STAY PETITION SUBMITTED BY
THE PETITIONER TO THE 2ND RESPONDENT FOR
THE AY 2015-16.
EXHIBIT P3(c) TRUE COPY OF STAY PETITION SUBMITTED BY
THE PETITIONER TO THE 2ND RESPONDENT FOR
THE AY 2016-17.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
24.01.2019 IN WP(C) NO. 2193/2019 PASSED
BY THIS HONOURABLE COURT.
EXHIBIT P5 TRUE COPY OF THE COMMON ORDER DATED
11.3.2019 PASSED BY THE 2ND RESPONDENT
EXHIBIT P-3,P-3(A), P-3(B) AND P-3(C)
FOR THE AY'S 2011-12, 2012-13, 2015-16
AND ALSO IN THE STAY PETITIONS FOR AY'S
2013-14 AND 2014-15.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED
20.06.2019 IN WP(C) NO. 15061 OF 2019
PASSED BY THIS HONOURABLE COURT.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED
13.08.2019 IN W.A NO. 1769 OF 2018
PASSED BY THE DIVISION BENCH OF THIS
HONOURABLE COURT.
EXHIBIT P8 TRUE COPY OF THE ORDER PASSED BY THIS
HONOURABLE COURT IN I.A NO.1/2019 IN
WP(C) NO. 15061 OF 2019.
EXHIBIT P9 TRUE COPY OF THE FORM 26AS FOR THE
RELEVANT ASSESSMENT YEAR 2011-12.
EXHIBIT P9(a) TRUE COPY OF THE FORM 26AS FOR THE
RELEVANT ASSESSMENT YEAR 2012-13.
EXHIBIT P9(b) TRUE COPY OF THE FORM 26AS FOR THE
RELEVANT ASSESSMENT YEAR 2015-16.
EXHIBIT P9(c) TRUE COPY OF THE FORM 26AS FOR THE
RELEVANT ASSESSMENT YEAR 2016-17.
EXHIBIT P10 TRUE COPY OF THE NOTICE OF POSTING FOR
HEARING THE THE APPEALS FOR THE AY 2011-
EXHIBIT P10(a) TRUE COPY OF THE NOTICE POSTING FOR
W.P.(C) No.9270/21
HEARING THE APPEALS FOR THE AY 2012-13.
EXHIBIT P10(b) TRUE COPY OF THE NOTICE POSTING FOR
HEARING THE APPEALS FOR THE AY 2015-16.
EXHIBIT P10(c) TRUE COPY OF THE NOTICE POSTING FOR
HEARING THE APPEALS FOR THE AY 2016-17.
