IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941 WP(C).No.11700 OF 2019(J) PETITIONER: M.BRIJESH AGED 44 YEARS S/O.RAMANKUTTY GUPTHAN, PROPRIETOR, M/S.GEETHAM SWEETS, 30/167, BIG BAZAR, PALAKKAD. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA RESPONDENTS: 1 INCOME TAX OFFICER, WARD-1, PALAKKAD- 678014. 2 COMMISSIONER OF INCOME TAX (APPEALS), 3RD FLOOR, AAYAKAR BAHVAN, THRISSUR- 680001. 3 UCO BANK, MARKET ROAD, PALAKKAD- 678001, REPRESENTED BY ITS BRANCH MANAGER. 4 STATE BANK OF INDIA, MARKET ROAD, PALAKKAD- 678001, REPRESENTED BY ITS BRANCH MANAGER. 5 INDIAN BANK, KANDATH COMPLEX, PALAKKAD- 678001, REPRESENTED BY ITS BRANCH MANAGER. 6 PALAKKAD DISTRICT CO-OPERATIVE BANK LTD., SREEKRISHNAPURAM BRANCH, PALAKKAD DISTRICT, PIN- 679513, REPRESENTED BY ITS MANAGER. R1-2 BY ADV. SRI.P.K.RAVINDRANATHA MENON (SR.) R1-2 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX R4 BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.) R4 BY SRI.AMAL GEORGE, SC, SBI R6 BY SRI.M.SASINDRAN, SC, PALAKKAD DIST.CO.OP.BANK W.P(C) No.11700/19 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2019, COURT ON SAME DAY DELIVERED FOLLOWING: W.P(C) No.11700/19 3 JUDGMENT petitioner has approached this Court aggrieved by action of respondent Income Tax Department in recovering amount of Rs.39,35,313/- from savings account of petitioner towards tax liability confirmed against petitioner for assessment years 2011-2012 and 2012-2013 under Income Tax Act. facts in Writ Petition would reveal that against assessments for said years, petitioner had preferred appeals before 2nd respondent Appellate Authority. In stay application that was filed along with Appeal, for assessment year 2011-2012 Appellate Authority directed petitioner to pay 15% of confirmed demand by order dated 29.12.2016. said amount of Rs.8,47,278/- had to be paid by petitioner in three monthly instalments. As against this, petitioner could effect payment of only Rs.6,14,860/- leaving balance of Rs.2,32,418/- as defaulted. Similarly, for assessment year 2012-2013 by order dated 11.01.2018 passed by Assessing Authority, in application under Section 220(2) of Income Tax Act, petitioner was required to pay amount of Rs.12,98,710/- within six months from date of order. As against this, petitioner paid amount of Rs.6,75,000/- leaving balance of Rs.6,22,091/- as defaulted. On finding that petitioner had not complied with conditions for stay against recovery,, respondent Income Tax Authority proceeded to recover entire tax demand confirmed against petitioner from its Bank account. It is said action of Department that is impugned in these proceedings. 2. I have heard Sri.Harisankar V. Menon, learned counsel for petitioner and Sri.Jose Joseph, learned Standing Counsel for Income Tax Department. W.P(C) No.11700/19 4 3. On consideration of facts and circumstances of case and submissions made across Bar, I find that it is not in dispute that as against orders passed by Appellate Authority/Assessing Authority, petitioner defaulted in amount of Rs.8,54,509/-. It would normally follow, as consequence, that on default committed by petitioner, he would lose benefit of stay order granted by authority and entire confirmed tax demand would become payable to Department. I note however, that petitioner had approached this Court through W.P (C) No.10147 of 2019 and this Court had disposed Writ Petition by Ext.P5 judgment, wherein direction was given to 1 st respondent to consider request of petitioner for extension of time to comply with order dated 11.01.2018 of 1 st respondent. It is submitted across Bar that even before contents of judgment could be communicated to 1 st respondent, 1st respondent had already taken steps to recover entire confirmed tax demands from petitioner for both assessment years. Taking note of plea of financial hardship urged by learned counsel for petitioner, and fact that, had petitioner effectively complied with directions of first Appellate Authority as also assessing authority, he would have been obliged to pay only amount of Rs.8,54,509/- which he did not, I deem it appropriate to dispose Writ Petition with following directions: i. If petitioner pays amount of Rs.15,00,000/- in lieu of balance Rs.8,54,509/- that he was required to pay out of amounts ordered by Assessing Authority/Appellate Authority, as condition for grant of stay of recovery of balance amount confirmed against him by assessment orders, then W.P(C) No.11700/19 5 respondents shall promptly, and at any rate within two weeks from today, re-credit balance amount from amounts already recovered from petitioner, to respective Bank account. In other words, respondents shall retain amount of Rs.15,00,000/- from amount of Rs.39,35,313/- recovered by them from account of petitioner, and re-credit balance amount of Rs.24,35,313/- to petitioner's savings account maintained with 4th respondent Bank, within two weeks from today. ii. 2nd respondent Appellate Authority shall thereafter proceed to hear petitioner and pass final orders in Appeals preferred by petitioner for assessment years 2011-2012 and 2012-2013 respectively, within outer time limit of six months from date of receipt of copy of this judgment. iii. It is made clear that on respondents appropriating amount permitted to be appropriated by this judgment, they shall refrain from initiating coercive steps for recovery of any further amounts that were confirmed against petitioner by assessment orders for aforementioned assessment years, till such time as orders are passed by Appellate Authority in appeals aforementioned and said appellate orders are communicated to petitioner. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE okb //True copy// P.S. to Judge W.P(C) No.11700/19 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY 1ST RESPONDENT FOR YEAR 2011-12 DATED 29.12.2016. EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY 1ST RESPONDENT FOR YEAR 2012-13 DATED 30.12.2017. EXHIBIT P2 COPY OF ORDER ISSUED BY 2ND RESPONDENT DATED 13.12.2017. EXHIBIT P2 COPY OF ORDER ISSUED BY 1ST RESPONDENT DATED 11.01.2018. EXHIBIT P3 COPY OF LETTER SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT DATED 06.02.2019. EXHIBIT P4 COPY OF NOTICE ISSUED BY 1ST RESPONDENT TO 3RD RESPONDENT BANK DATED 30.03.2019. EXHIBIT P5 COPY OF JUDGMENT IN W.P(C)NO.10147/2019 OF THIS HON'BLE COURT DATED 02.04.2019. EXHIBIT P5 COPY OF JUDGMENT IN W.P(C)NO.10207/2019 OF THIS HON'BLE COURT DATED 02.04.2019. EXHIBIT P6 COPY OF LETTER SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT DATED 05.04.2019. M.Brijesh v. ITO, Ward-1, Palakkad / CIT(A), Thrissur / UCO Bank, Palakkad / State Bank of India, Palakkad / Indian Bank, Palakkad / Palakkad District Co-Operative Bank Ltd., Palakkad