2019 (7) TMI 391 - HC - Income Tax

Stay of demand - insisting upon payment of 20% of the disputed tax amount - HELD THAT - The learned single Judge while disposing the writ petitions, had reduced the condition by limiting the payment to an amount of 10%, till the disposal of the appeals. It is challenging those judgments, these appeals are filed. Question regarding liability of the appellant banks to pay the income tax assessed, is a matter which was decided by a Full Bench of this Court in the judgment in The Mavilayi Service Co-operative Bank Ltd. v. The Commissioner of Income Tax, Calicut 2019 (3) TMI 1580 - KERALA HIGH COURT . In view of the dictum laid in the said judgment, it is contended that the appellate authority can only remand the matter to the assessing authority for conducting a fresh enquiry with respect to the nature of the activities of the banks in question. Hence it is contended that, the insistence for making payment of any portion of the amount under demand, pending disposal of the appeal, may cause hardships and prejudices to the banks concerned. Taking note of the peculiar aspect involved touching the merits in the appeals based on the Full Bench decision mentioned above, we are of the opinion that the insistence for payment of a portion, as a condition for granting stay, need not be made in the cases at hand. Therefore the impugned judgments need to be modified. Hence, the writ appeals are hereby allowed. The impugned judgment of the single Judge are hereby set aside. The respective writ petitions are allowed to the extent of directing the Commissioner of Income Tax (Appeals) to consider and dispose of the statutory appeals filed by the appellants herein, at the earliest, taking note of the Full Bench decision cited above and to keep in abeyance recovery and collection of the tax assessed, pending disposal of such appeals.

Summary

Issues involved: Challenge against interim order for payment of disputed tax amount pending appeal.

Analysis:
1. The writ appeals were considered together as the issues involved were identical. The challenge was against the interim order by the Commissioner of Income Tax (Appeals) requiring payment of 20% of the disputed tax amount pending appeal. The single Judge had reduced this condition to 10%, leading to the filing of these appeals.

2. The appellants argued that the liability to pay income tax assessed was decided by a Full Bench judgment, which stated that the appellate authority could only remand the matter for a fresh inquiry. They contended that insisting on payment pending appeal could cause hardships to the banks. On the other hand, the respondent's counsel argued that the part payment for granting stay was at the discretion of the appellate authority.

3. The Court, considering the peculiar aspect based on the Full Bench decision, opined that the insistence on payment of a portion as a condition for granting stay was not necessary in these cases. Therefore, the impugned judgments were to be modified.

4. Consequently, the writ appeals were allowed, setting aside the single Judge's judgment. The Commissioner of Income Tax (Appeals) was directed to consider and dispose of the statutory appeals promptly, following the Full Bench decision, and to suspend tax recovery pending appeal.