IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(Crl.).No. 652 of 2010(Q)
1. SATHAR.E.M,AGED 33 YEARS,
... Petitioner
Vs
1. THE INCOME TAX OFFICER,KASARAGOD,
... Respondent
2. SHARAFUDDEEN.P.P,S/O.ABDUL RAHIMAN,
For Petitioner :SRI.T.K.VIPINDAS
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/11/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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O.P.(Crl).NO.652 OF 2010
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Dated 10th November, 2010
JUDGMENT
Pursuant to Ext.P1 order in
Crl.M.C.5047/2008, petitioner was permitted to
have interim custody of the cash seized in
Crime No.135/2008 of Bekal Police Station.
Subsequently, based on the assessment order,
Income Tax Officer approached the learned
Magistrate for a direction to the petitioner
to deposit Rs.5,68,560/-, being the income
tax payable by the petitioner as assessed.
Ext.P3 notice was issued by the learned
Magistrate in that application, directing him
to appear before the Magistrate on 19/6/2010.
This petition is filed under Article 227 of
Constitution of India for a writ of mandamus
directing Judicial First Class Magistrate-II,
Hosdurg to keep in abeyance further
OP(Crl) 652/10 2
proceedings in C.M.P.1768/2010, contending
that challenging the order of dismissal,
petitioner had already filed Ext.P2 appeal
before Commissioner (Appeals) of Income Tax,
Kozhikode. Case of the petitioner is that
if before disposal of the appeal, petitioner
is to pay the amount as assessed by the
Income Tax Authorities, which is challenged
in the appeal, the appeal itself will become
infructuous.
2. Learned counsel appearing for
the petitioner and learned Standing Counsel
appearing for first respondent were heard.
3. Petitioner did not produce copy
of C.M.P.1768/2010 which was sought to be
kept in abeyance by issuing a writ of
mandamus. The fact that petitioner filed
Ext.P2 appeal against the order passed by
the Income Tax Officer, is not a ground to
OP(Crl) 652/10 3
contend that he is not liable to pay that
amount. So long as there is no order of
stay, learned Magistrate can proceed with
application. It is upto the petitioner to
seek an order of stay in Ext.P2 appeal.
Learned counsel appearing for the
petitioner submitted that the appeal is not
posted for a particular day and therefore,
petitioner could not get an order of stay.
Writ petition is disposed directing
Judicial First Class Magistrate’s Court-II,
Hosdurg to keep in abeyance further
proceedings in C.M.P.1768/2010 for three
weeks from today making it clear that it is
upto the petitioner to get an order from the
Appellate Authority, before that date.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.