IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 WP(C).No. 27850 of 2011(E) ----------------------- PETITIONER: ------------------ M/S.GASHA STEELS PVT.LTD., 23/2087, PANNIYANKAA, CALICUT, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.K.ABDUL GAFOOR. BY ADVS. SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A.KAMATH RESPONDENTS: ----------------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-I(1), KOZHIKODE. 2. THE COMMISSIONER OF INCOME TAX (APPEALS), KOZHIKODE. R1 & R2 BY ADV. SRI. JOSE JOSEPH, SC, INCOME TAX. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMG W.P (C) No.27850/2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1 – TRUE COPY OF THE ASSESSMENT ORDER DATED 23-12-2008 FOR THE ASSESSMENT YEARS 2005-06 ISSUED TO THE PETITIONER. EXT.P2 – TRUE COPY OF THE ASSESSMENT ORDER DATED 23-12-2008 FOR THE ASSESSMENT YEARS 2006-07 ISSUED TO THE PETITIONER. EXT.P3 – TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT FOR THE YEAR 2005-06. EXT.P4 – TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT FOR THE YEAR 2006-07. EXT.P5 – TRUE COPY OF THE POSTING NOTICE DATED 14-02-2011 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXT.P6 – TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P7 – TRUE COPY OF THE ORDER DATED 30-09-2011 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. RESPONDENTS EXHIBITS NIL TRUE COPY P.A. TO JUDGE AMG S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C) No. 27850 OF 2011 ------------------------------------------------- DATED THIS THE 24th DAY OF OCTOBER, 2011 J U D G M E N T The petitioner challenges Ext.P7 order passed by the assessing authority under the Income Tax Act, in an application not to treat the petitioner as in default pending disposal of the appeal pending before the appellate authority against the assessment orders for the assessment years 2005-06 and 2006-07, the operative portion of which reads as follows: “In view of the above, you are directed to pay the demand in six equal monthly installments of Rs.10 lakh from October 2011 to March 2012 and the balance amount is stayed till disposal of the 1st appeal or till 29th Feb 2012, whichever is earlier. The monthly installments should be paid on or before 10th of each month. It is also informed that the interest u/s 220 (2) accrued will be added to the total demand outstanding.” 2. The contention of the petitioner is that the assessment orders in respect of assessment years have already been taken in appeal before the appellate authority and the appellate authority has already heard appeals on 24-04-2011. Therefore it is only appropriate that the assessment authority treats petitioner as not in default until the disposal of the appeal is the contention raised. W.P.(C) No.27850/2011 -2- 3. I have heard standing counsel for the Income Tax Department also. I was inclined to a grant stay of recovery of 50% of the tax in dispute. However, the counsel for the petitioner insists that since the appeal has already been heard the petitioner should be granted absolute stay until the disposal of the appeal. I am of the opinion that without moving for stay in the appeals, the petitioner cannot make such prayers. In the said circumstances I am not inclined to entertain the challenge against Ext.P7 order. Therefore the writ petition is dismissed. Sd/- S. SIRI JAGAN, JUDGE. AMG True copy P.A to Judge