Kerala High Court
Ibs Software Private Limited vs The Union Of India on 5 April, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 14207 OF 2024
PETITIONER:
IBS SOFTWARE PRIVATE LIMITED,
521-524 NILA, TECHNOPARK CAMPUS, THIRUVANANTHAPURAM ,
REPRESENTED BY ITS CHIEF FINANCIAL OFFICER -
MR. ASHISH NANDA, PIN - 695581.
BY ADVS.
SRI. RAJA KANNAN
SRI. M. GOPIKRISHNAN NAMBIAR
SRI. K. JOHN MATHAI
SRI. JOSON MANAVALAN
SRI. KURYAN THOMAS
SRI. PAULOSE C. ABRAHAM
RESPONDENTS:
1 THE UNION OF INDIA,
REPRESENTED BY ITS REVENUE SECRETARY,
MINISTRY OF FINANCE, NEW DELHI, PIN - 110004.
2 THE ASSISTANT COMMISSIONER OF INCOME TAX,
CIRCLE 1 (1), 2. AAYAKAR BHAWAN, KAWADIAR P. O.,
THIRUVANANTHAPURAM, PIN - 695003.
3 THE INCOME TAX APPELLATE TRIBUNAL,
FIRST FLOOR, KENDRIYA BHAVAN, KAKKANAD, KOCHI
REPRESENTED BY ITS ASSISTANT REGISTRAR, PIN - 682037.
BY ADVS.
SRI. P. G. JAYASHANKAR - SC
SRI. G. KEERTHIVAS - SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 14207 OF 2024
2
DINESH KUMAR SINGH, J.
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W.P.(C) No. 14207 of 2024
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Dated this the 5th day of April, 2024
JUDGMENT
1. The present writ petition has been filed impugning Exhibit P-9
notice issued by the 2nd respondent directing the petitioner to
deposit entire assessed tax, penalty, interest etc., which comes to
Rs. 21,21,12,860/-.
2. The petitioner has filed Exhibit P-2 appeal before the Income
Tax Appellate Tribunal (ITAT) against the assessment order in
Exhibit P-1, along with the stay petition in Exhibit P-8.
3. The assessment order has been finalised under the provisions
of Section 143(3) read with Section 144C of the Income Tax Act,
1961. Against the assessment order finalised under Section 144C,
the appeal lies only before the ITC and not before the Commissioner
of Income Tax (Appeals) [CIT(A)].
4. Learned Counsel for the petitioner submits that CBDT Circular
No. 1914/1993 and para 4 of the OM with F. No. 404/72/93-ITCC
dated 29.02.2016, which is amended in the year 2017, if an assessee
deposits 20% of the assessed tax, till the decision of the appeal
before the 1st appellate authority, the remaining amount should not
WP(C) NO. 14207 OF 2024
be enforced.
5. Mr. G. Keerthivas, learned Counsel for the Income Tax
Department, however, submits that the above Circular is applicable
only in case of the appeals filed before the CIT(A) and it is not
applicable in respect of the appeals which are filed before the ITAT
and, therefore, the petitioner, an assessee cannot contend that
since he has deposited 20% of the assessed tax, penalty, interest
etc., the remaining amount should not be realised as there is no
interim order passed by the ITAT.
6. I have considered the submissions. The intent of the Circular is
to grant protection to an assessee from further recovery till his stay
petition is considered by the appellate authority, if the assessee
deposits 20% of the assessed tax, penalty, interest etc. In the
present case, the appeal against the assessment order lies only
before the ITAT. Therefore, I am of the considered view that,
considering the intent of the Circular No. 1914/1993 read with OM
dated 29.02.2016 (amended in the year 2017), the Circular be
applicable in the case the appeal against the assessment order lies
only before the ITAT.
7. In view thereof, the present writ petition is disposed of with
direction to the 3rd respondent ITAT to consider and decide the stay
WP(C) NO. 14207 OF 2024
petition in Exhibit P-8 filed by the petitioner along with the appeal
in Exhibit P-2 expeditiously, preferably within a period of two
months. For a period of two months, the impugned notice in Exhibit
P-9 shall not be given effect to.
Sd/-
DINESH KUMAR SINGH
JUDGE
Svn
WP(C) NO. 14207 OF 2024
APPENDIX OF WP(C) 14207/2024
PETITIONER'S EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORDER OF ASSESSMENT DATED
24.02.2022, ALONG WITH COMPUTATION SHEET AND
DEMAND NOTICE (BOTH EVEN DATED) PASSED BY THE 2ND
RESPONDENT UNDER SECTION 143(3) READ WITH SECTION
144C (13) OF THE ACT FOR THE A.Y 2017-18
Exhibit P2 THE TRUE COPY OF THE APPEAL MEMORANDUM (WITHOUT
ANNEXURES) DATED 24.03.2022 FILED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT, CHALLENGING
EXT.P1 ORDER
Exhibit P3 THE TRUE COPY OF THE CHALLAN NO. 11803 DATED
24.03.2022, EVIDENCING THE PAYMENT OF RS.
4,25,00,000/-, TOWARDS 20% OF THE DEMAND AS PER
EXT.P1 ORDER
Exhibit P4 THE TRUE COPY OF THE LETTER (WITHOUT ANNEXURES)
DATED 25.03.2022 FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT
Exhibit P5 THE TRUE COPY OF THE LETTER (WITHOUT ANNEXURES)
DATED 11.03.2024 FILED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT
Exhibit P6 THE TRUE COPY OF THE LETTER DATED 07.03.2024
ISSUED BY THE 2ND RESPONDENT FOR THE A.Y 2017-18
Exhibit P7 THE TRUE COPY OF THE LETTER DATED 19.03.2024
FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT
Exhibit P8 THE TRUE COPY OF THE STAY PETITION (WITHOUT
ANNEXURES) DATED 18.03.2024 FILED BY THE
PETITIONER BEFORE THE OFFICE OF THE 3RD
RESPONDENT, FOR THE A.Y 2017-18
Exhibit P9 THE TRUE COPY OF THE COMMUNICATION DATED
25.03.2024 PASSED BY THE 2ND RESPONDENT, FOR THE
A.Y 2017-18
Exhibit P10 THE TRUE COPY OF THE E-MAIL COMMUNICATION DATED
02.04.2024, 11.03.2024 AND 07.03.2024, BETWEEN
THE PETITIONER AND THE 2ND RESPONDENT
