IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 WP(C).No. 5319 of 2011(L) ------------------------- PETITIONER: ------------------- H.SRIRAMACHANDRA PAI, SRI RAM AGENCIES HOSDURG, KANHANGAD - 671315. BY ADVS. SRI.A.N.RAJAN BABU SMT.SUNITHA VINOD RESPONDENT(S): ------------------------ 1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY, INCOME TAX DEPARTMENT, MINISTRY OF FINANCE, CENTRAL SECRETARIAT, N.DELHI. 2. COMMISSIONR OF INCOME TAX (APPEALS) - II, CALICUT. 3. THE JOINT COMMISSIONR OF INCOME TAX, KANNUR. 4. THE INVOME TAX OFFICER, WARD NO.II, KASARGOD. BY SRI.JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5319 of 2011(L) ------------------------------------ ORDER ON IA NO. 3275/2011 IN WPC NO.5319/2011 ALLOWED 04.03.2011 Sd/- C.K.ABDUL REHIM, JUDGE / TRUE COPY / P.A. TO JUDGE VK C.K.ABDUL REHIM, J. ----------------------------------------- W.P.(C). NO. 5319 OF 2011 ---------------------------------------- Dated this the 4th day of March, 2011. JUDGMENT Aggrieved by Ext.P2 order of assessment completed with respect to the year 2006-2007, the petitioner had preferred appeal before the second respondent, as evidenced from Ext.P4. Contention of the petitioner is that the income assessed for tax could not be considered as commission derived by the petitioner with respect to sale of prepaid sim cards of BSNL, because the relationship between the BSNL and the petitioner is not as that of principal and agent. During pendency of the statutory appeal the petitioner made a request to the Joint Commissioner (the 3rd respondent) to restrain realisation of the amount of tax due. Ext.P6 is the order passed by the Assessing Officer (respondent No.4). On the basis of such petition, wherein the petitioner was directed to make payment of a sum of Rs.6 lakhs in instalments, as condition imposed for restraining recovery of the amount. 2. The petitioner had produced further document as Ext.P7, which is an application for stay filed before the appellate authority, the 2nd respondent herein. In Ext.P7 the petitioner is W.P.(C). NO. 5319 OF 2011 2 seeking stay against recovery of the amount due under Ext.P2 order of assessment, till the disposal of the appeal by the said authority. It is evident from Ext.P8 that the stay petition was submitted to the 2nd respondent on 23.02.2011. Under such circumstances, the petitioner seeks interference of this Court to restrain the recovery steps till the disposal of the appeal. 3. Considering the facts and circumstances, I am of the view that since the matter is now in seizin of the appellate authority, this Court is not justified in entering upon any findings regarding merits of the contentions. It is evident that the appellate authority is empowered to pass appropriate orders on the applications filed seeking interim reliefs. Therefore, I am of the view that the writ petition can be disposed of directing the appellate authority to consider and dispose of Ext.P7 application on an early basis. 4. Under such circumstances, the writ petition is disposed of directing the second respondent to consider and pass orders on Ext.P7 application, after affording an opportunity of hearing to the petitioner as early as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. It is left open to the second respondent to consider and dispose of the W.P.(C). NO. 5319 OF 2011 3 appeal itself, if possible. 5. Till such time orders are issued by the second respondent as directed above. Recovery of amounts covered under Ext.P2 order of assessment shall be kept in abeyance. The petitioner will produce a copy of this judgment before the 2nd respondent. C.K.ABDUL REHIM, JUDGE mns