The Cochin Malabar Estates and Industries Limited v. The Commissioner of Income-tax (Appeals)-1, Kochi / Income-tax Officer, (Corporate) Ward 2(4), Kochi
[Citation -2020-LL-0923-16]

Citation 2020-LL-0923-16
Appellant Name The Cochin Malabar Estates and Industries Limited
Respondent Name The Commissioner of Income-tax (Appeals)-1, Kochi / Income-tax Officer, (Corporate) Ward 2(4), Kochi
Court HIGH COURT OF KERALA AT ERNAKULAM
Relevant Act Income-tax
Date of Order 23/09/2020
Judgment View Judgment
Keyword Tags non-application of mind • application for stay • disputed amount • stay petition
Bot Summary: No.19681 OF 2020(I) 2 JUDGMENT Aggrieved by Ext.P2 assessment order under the Income Tax Act, the petitioner had preferred Ext.P3 appeal and Ext.P4 stay petition before the 1st respondent. The 1st respondent mechanically passed Ext.P5 order on Ext.P4 stay petition and directed the petitioner to pay 20 of the disputed amount, pending disposal of the appeal. It is apparent from a perusal of Ext.P5 order that there has been no application of mind by the 1st respondent on the merits of the case before him, and he has mechanically proceeded to rely on Board Circulars while directing the assessee to pay 20 of the disputed amount, pending disposal of the appeal. In my view, Ext.P5 order of the 1st respondent cannot be legally sustained since it reflects a patent non-application of mind by the 1st respondent, as also his failure to properly exercise the discretion that was conferred on him by the statutory provisions. Quash Ext.P5 order and direct 1st respondent to pass orders on Ext.P3 appeal itself, considering the fact that the appeal has been pending since January 2020, within six months from the date of receipt of a copy of this judgment, after hearing the petitioner. Needless to say, till such time as orders are passed by the 1st respondent in the appeal, and the order communicated to the petitioner, recovery steps for recovery of amounts confirmed against the petitioner by Ext.P2 assessment order shall be kept in abeyance. The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 1st respondent, for further action.


IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942 WP(C).No.19681 OF 2020(I) PETITIONER/S: COCHIN MALABAR ESTATES AND INDUSTRIES LIMITED 234A,RACE COURSE ROAD, COIMBATORE-641018,REPRESENTED BY ITS'DIRECTOR MR.CHANDRA PRAKASH SHARMA. BY ADVS. SRI.A.KUMAR SRI.P.J.ANILKUMAR SMTG.MINI(1748) SRI.P.S.SREE PRASAD SHRI.JOB ABRAHAM SRI.AJAY V.ANAND RESPONDENT/S: 1 COMMISSIONER OF INCOME TAX (APPEALS)-1, POORNIMA BUILDINGS,MANORAMA JUNCTION, PANAMPILLY NAGAR,KOCHI-682036. 2 INCOME TAX OFFICER, (CORPORATE) WARD 2 (4),KOCHI-682018. OTHER PRESENT: SC: JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.09.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.19681 OF 2020(I) 2 JUDGMENT Aggrieved by Ext.P2 assessment order under Income Tax Act, petitioner had preferred Ext.P3 appeal and Ext.P4 stay petition before 1st respondent. 1st respondent mechanically passed Ext.P5 order on Ext.P4 stay petition and directed petitioner to pay 20% of disputed amount, pending disposal of appeal. It is apparent from perusal of Ext.P5 order that there has been no application of mind by 1st respondent on merits of case before him, and he has mechanically proceeded to rely on Board Circulars while directing assessee to pay 20% of disputed amount, pending disposal of appeal. In my view, Ext.P5 order of 1st respondent cannot be legally sustained since it reflects patent non-application of mind by 1st respondent, as also his failure to properly exercise discretion that was conferred on him by statutory provisions. I therefore, quash Ext.P5 order and direct 1st respondent to pass orders on Ext.P3 appeal itself, considering fact that appeal has been pending since January 2020, within six months from date of receipt of copy of this judgment, after hearing petitioner. Needless to say, till such time as orders are passed by 1st respondent in appeal, and order communicated to petitioner, recovery steps for recovery of amounts confirmed against petitioner by Ext.P2 assessment order shall be kept in abeyance. petitioner shall produce copy of writ petition together with copy of this judgment, before 1st respondent, for further action. Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE SJ WP(C).No.19681 OF 2020(I) 3 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF APPEAL BEFORE ITAT AGAINST ORDER U/S 263 EXHIBIT P2 TRUE COPY OF ORDER OF ASSESSMENT DATED 31.12.2019 EXHIBIT P3 TRUE COPY OF MEMORANDUM OF APPEAL DATED 28.01.2020 EXHIBIT P4 TRUE COPY OF APPLICATION FOR STAY DATED 10.2.2020 EXHIBIT P5 TRUE COPY OF ORDER ON APPLICATION FOR STAY DATED 3.08.2020 BY 1ST RESPONDENT. Cochin Malabar Estates and Industries Limited v. Commissioner of Income-tax (Appeals)-1, Kochi / Income-tax Officer, (Corporate) Ward 2(4), Kochi
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