IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT: HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939 WP(C).No. 13364 of 2017 (U) -PETITIONER: ANTONY SUNNY, VELLARA HOUSE, CONVENT ROAD, VADAKKEKAD, NHAMANGHAT P.O., THRISSUR 679 563. BY ADVS.SRI.K.SRIKUMAR (SR.) SRI.K.MANOJ CHANDRAN SRI.P.R.AJITHKUMAR SRI.P.V.THOMAS SRI.S.A.MANSOOR (PATTANAM) RESPONDENTS: 1. JOINT COMMISSIONER OF INCOME TAX, RANGE -1, THRISSUR, DEPARTMENT OF INCOME TAXES AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR 680 001. 2. COMMISSIONER OF INCOME TAX (APPEALS) 3RD FLOOR, AAYAKAR BHAVAN, THRISSUR 680 001. BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2017, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No. 13364 of 2017 (U) APPENDIX PETITIONER'S EXHIBITS P1 TRUE COPY OF PROPOSAL NOTICE DATED 01.11.2016 ISSUED U/S.271D OF INCOME TAX ACT P1A TRUE COPY OF PROPOSAL NOTICE DATED 01.11.2016 ISSUED U/S.271E OF INCOME TAX ACT P2: TRUE COPY OF PENALTY ORDER DATED 16.12.2016 P3: TRUE COPY OF PENALTY ORDER DATED 16.12.2016 PASSED U/S.271E OF INCOME TAX ACT P4: TRUE COPY OF APPEAL DATED 27.02.2017 P5: TRUE COPY OF OFFICE MEMORANDUM F.NO.404/72/ITCC DATED 29.02.2016 P6: TRUE COPY OF STAY PETITION DATED 01.03.2017 P7: TRUE COPY OF LETTER NO.JCIT/R.1/TCR/STAY/2016-17 DATED 31.03.2017 //TRUE COPY// P.A. TO JUDGE JJJ K. VINOD CHANDRAN, J. W.P.(C) No. 13364 of 2017 (U) Dated: 12th April, 2017 JUDGMENT petitioner is aggrieved with order passed at Ext.P7 by Assessing Officer. 2. Ext.P7 order has been rejected on ground that 15% of disputed demand has to be paid so as to enable consideration of stay petition. stay petition was filed by petitioner, as per Ext.P5 Circular of Central Board of Direct Taxes (CBDT). petitioner also has contention that petitioner had moved appeal and stay petition simultaneously. Appellate Authority directed petitioner to approach Assessing Officer, under Ext.P5, and hence stay petition was withdrawn. petitioner had moved Assessing Officer, who had W.P.(C) No. 13364/2017 -2- directed deposit of 15% of demand to consider stay petition. 3. direction of Assessing Officer is against Ext.P5 Circular. intention of CBDT was to streamline process of grant of stay and standardize quantum of lump sum payment pending appeal. measure was designed also to avoid hardship to tax payers from whom high proportion of disputed amounts are demanded, pending appeal. In fact, direction in Circular was to consider stay of outstanding demand on payment of 15% of disputed demand, till first appeal is considered. intention is for Assessing Officer to look into nature of demand and grant stay on payment of 15% or otherwise reduce condition; unless case comes under Clause 4(B) of Circular. If 15% is directed to be paid, then there is no reason why W.P.(C) No. 13364/2017 -3- Assessing Officer should then consider application for stay, since, as per Circular, there should be stay till disposal of appeal. 4. In any event, since appeal has been filed and Assessing Officer has been acting against specific provisions of Circular, this Court is of opinion that Appellate Authority itself should consider stay application. Ext.P7 would stand set aside. petitioner shall move fresh petition for stay before Appellate Authority and Appellate Authority shall consider same. petitioner shall move stay application within three weeks from today. Till orders are passed in that application, there shall be interim stay of demand. writ petition is disposed of. Sd/- K.VINOD CHANDRAN, JUDGE jjj 12/4/17 Antony Sunny v. Joint Commissioner of Income-tax, Range -1, Thrissur / Commissioner of Income-tax (Appeals), Thrissur