M/S.Sahyadri Co-Operative Credit Soceity Ltd v. The Union Of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN THURSDAY, THE 15TH DAY OF OCTOBER 2015/23RD ASWINA, 1937 WP(C).No. 31398 of 2015 (Y) ---------------------------- PETITIONER(S):

-------------------------- 1.

M/S.SAHYADRI CO-OPERATIVE CREDIT SOCEITY LTD 1ST FLOOR, AMAL JYOTHI BUILDING CATHEDRAL ROAD, KANJIRAPPALLY, KOTTAYM 686 507 REPRESENTED BY ITS MANAGING DIRECTOR - JOY JOHN VAIDYA BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.RAJA KANNAN RESPONDENT(S):

---------------------------- 1.

THE UNION OF INDIA, REPRESENTED BY THE SECRETARY MINISTRY OF FINANCE (DEPT. OF REVENUE) NORTH BLOCK, NEW DELHI - 110 001 2.

THE INCOME TAX OFFICER WARD - 4, KOTTAYAM 686 001 3.

THE COMMISSIONER OF INCOME TAX (APPEALS) 1ST FLOOR, KOTTAYAM LIBRARY BUILDING SASTHRI ROAD, KOTTAYAM 686 001 4.

THE CHIEF COMMISSIONER AYAKAR BHAVAN, KOWDIYAR THIRUVANANTHAPURAM - 695 003 R BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 31398 of 2015 (Y) APPENDIX PETITIONERS EXHIBITS:

EXT.P1 COPY OF THE ASSESSMENT ORDER DTD. 11.03.15 PASSED BY THE 2ND RESPONDENT.

EXT.P2 COPY OF THE APPEAL MEMORANDUM (WITHOUT ANNEXURES) DTD. 10.4.15 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, AGAINST EXT.P1 ORDER.

EXT.P3 COPY OF THE STAY PETITION DTD. 10.6.15 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT AGAINST EXT.P1 ORDER.

EXT.P4 COPY OF THE ORDER DTD. 14.8.15 PASSED BY THE 3RD RESPONDENT.

RESPONDENTS EXHIBITS:

NIL // TRUE COPY // P.A TO JUDGE SB

K. VINOD CHANDRAN, J.

===================== W.P.(C) No.31398 of 2015 - Y ====================== Dated this the 15th day of October, 2015

J U D G M E N T

It is unfortunate that the statutory authority conferred with powers of appeal has by the impugned order rejected the stay application on the ground that the appellate authority lacks jurisdiction to pass orders of stay against the recovery of tax. This court in W.P.(C) No. 28467 of 2015, had to bring to the notice of the appellate authority, a judgment of the Hon'ble Supreme Court, in ITO v. Mohammed Kunhi [AIR 1969 SC 430], which dilates upon the inherent power of an appellate authority to consider the stay application even without the statute conferring such specific powers on the authority.

2. The impugned order at Ext.P4 is set aside. The Commissioner of Income Tax (Appeals) is directed to consider

W.P.(C) No.31398 of 2015 - Y the matter afresh and till then there shall be an interim stay of the recovery. The recovery shall depend upon the orders passed by the Commissioner of Income Tax (Appeals).

The writ petition would stand disposed of.

Sd/- K. VINOD CHANDRAN, JUDGE SB/15/10 /2015 // true copy // P.A to Judge.