Case Law Details

Case Name : Chirayinkeezhu Service Co-Operative Bank Ltd. Vs ITO (Kerala High Court)
Appeal Number : W.P. (C) No. 2856 of 2020
Date of Judgement/Order : 03/02/2020
Related Assessment Year :
Courts : All High Courts (6127) Kerala High Court (344)

Chirayinkeezhu Service Co-Operative Bank Ltd. Vs ITO (Kerala High Court)

The case projected in this Writ Petition (Civil) are as follows: The petitioner is a primary agricultural credit society registered as per the provisions of the KCS Act. Ext.P-1 order was issued under Sec.271 B for the assessment year 2015-16 against the petitioner. Aggrieved by the said order, the petitioner filed appeal and stay petition before the 2nd respondent. While awaiting orders on stay petition, it was informed vide Ext.P-2 communication that appeals are defective and defects have to be cured within 15 days. Ext.P-4 appeal was filed after curing the defects, after 7 days of the stipulated time. Later Ext.P-5 stay petition was also filed apprehending recovery proceedings. Ext.P6 is the order issued by the 2nd respondent dismissing the appeal stating that defects are not cured. It is in the light these averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers:

“i. To issue a writ of certiorari calling for the records leading to the issuance of Exhibit P6 and quash the same;

ii. To issue a writ of mandamus or any other writ, order or direction, directing the 1st respondent not to proceed with recovery of the demand based on Exhibit P1 penalty order for the assessment year 2015-2016, till Exhibit P4 appeal as well as Exhibit P5 stay petition are disposed of by the 2nd respondent;

And

iii. To grant such other reliefs as this Honourable Court may deem fit in the circumstances of this ”

2. Heard Sri. T.R. Harikumar, learned counsel appearing for the petitioner and Sri.Christopher Abraham, learned Standing Counsel appearing for the respondents.

3. It is pointed out by the counsel appearing for the petitioner that in similar circumstances, this Court has rendered directions as the one covered by Ext.P-7 judgment 7.2020 in WP(C).No.34119/2019, etc. Paragraph Nos. 4 to 6 of Ext.P-7 judgment reads as follows:

“4. The learned counsel for the petitioner would urge that it is now well settled by a series of rulings of the Apex Court and various High Courts in decisions as in State of Bihar v. Kameshwar Prasad Singh [2000 (9) SCC 94] that dismissing the statutory appeals on technical grounds of limitation would not in any way advance the interest of justice but admittedly, result in failure of justice etc. It is pointed out that the impugned action of the respondents in dismissing the appeals in terms of the impugned Exts.P11 and P12 proceedings is per se illegal and improper and that some breathing time should have been given to the petitioner to clear all the defects, so that their appeals and stay applications could have been considered and decided on merits etc.

5. Having heard both sides and after taking into account the facts and circumstances of the case, this Court is inclined to take the view that the impugned rejection orders Exts.P11 and P12 would warrant interdiction in these writ proceedings, so that the appeals and stay applications could be decided on merits, after affording reasonable opportunity of being heard to the petitioner. Accordingly, it is ordered that the appeals filed by the petitioner as per Exts.P7 and P9 and the stay applications as per Exts.P8 and P10 will stand remitted to the 2nd respondent appellate authority for consideration and decision afresh and on merits. To effectuate such a remit, it is ordered that the impugned Exts.P11 and P12 rejection orders will stand set aside. Further the learned counsel for the petitioner would point out that the petitioner has not raised some of the relevant grounds in the appellate memorandum and permission may be granted to ensure that additional memorandum of grounds is filed by the petitioner in pursuance of the appeals filed as per Exts.P7 and P9 and this Court may grant reasonable time in that regard. Having regard to the facts and circumstances of the case, this Court is of the view that the said limited plea need not be declined.

6. Accordingly, it is ordered that the petitioner may file additional memorandum of grounds in support of their Exts.P7 and P9 appeals as well as Exts.P8 and P10 stay applications, which the petitioner may appropriately file before the 2nd respondent appellate authority without much delay preferably within a period of ten days from the date notified for receiving a certified copy of this judgment. In case such additional memorandum of grounds is duly filed by the petitioner as aforestated, then the 2nd respondent appellate authority shall treat those additional grounds as part and continuation of the appeals and stay applications as already filed. Thereafter, the 2nd respondent may afford reasonable opportunity of being heard to the petitioner on the matters raised in Exts.P8 and P10 stay applications and orders may be passed on those stay applications without much delay preferably within a period of six weeks from the date of filing of the aforestated additional memorandum of grounds. It is only for the purpose of preservation of the subject matter of the lis, it is ordered that until orders are passed on Exts.P8 and P10 stay applications as aforedirected, further coercive steps for enforcing the impugned order may be kept in abeyance. It is made clear that the aforesaid directions have been issued by this Court only for the purpose of preservation of the subject matter of the list and shall not be construed in any manner as an opinion on the part of this Court regarding the merits of the controversy which would fall exclusively within the province of the 2nd respondent appellate authority for decision independently and on merits.”

4. Taking note of the directions in said judgment, it is ordered that the petitioner may file an additional memorandum of grounds in support of Ext.P-4 appeal as well as Ext.P-5 stay application before the 2nd respondent appellate authority, without much delay preferably within a period of 10 days from the date notified for receiving a certified copy of this judgment. In case such additional memorandum of grounds is duly filed by the petitioner as aforestated, then the 2nd respondent appellate authority shall treat those additional grounds as part and continuation of the appeal and stay application already filed. Thereafter, the 2nd respondent after affording reasonable opportunity of being heard to the petitioner on the matters raised in Ext.P-5 stay application, may pass orders on the stay application without much delay, preferably within a period of 6 weeks from the date of filing of the aforestated additional memorandum of grounds.

5. It is only for the purpose of preservation of the subject matter of the lis, it is ordered that until orders are passed on Ext.P-5 stay application as aforedirected, further coercive steps for enforcement of the impugned order may be kept in abeyance. It is made clear that the aforesaid directions have been issued by this Court only for the purpose of preservation of the subject matter of the lis, and shall not be construed in any manner as an opinion on the part of this Court regarding the merits of the controversy which would  fall  exclusively  within  the  province  of  the  2nd   respondent appellate authority for decision independently and on merits.

6. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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