Brian Dwight Gaffino v. Income Tax Officer & Ors

Amrut 1 WP689-18dt 30-10-2018 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.689 OF 2018 Brian Dwight Gaffino …Petitioner Versus Income Tax Officer & Ors. …. Respondents Mr. S.R. Rivankar and Mr. A. Kakodkar, Advocates for the Petitioner. Ms. A. Razaq, Standing Counsel for the Respondent No.3. Coram : N.M. Jamdar & Prithviraj K. Chavan, JJ. Date : 30 October 2018. P.C. : The Petitioner has challenged the orders passed by theIncome Tax Officer and the Principal Commissioner of Income Tax inrespect of the stay of demand for the Assessment Year 2010-11. By theorder dated 21 February 2018, the Income Tax Officer rejected theapplication made by the Petitioner for stay of demand and thePetitioner was directed to be deemed to be in default to the extent oftax demand. The petition filed before the Commissioner of Income Amrut 2 WP689-18dt 30-10-2018 Tax was rejected by order dated 29 May 2018. 2.The learned counsel for the Petitioner has drawn ourattention to the judgment in the case of KEC International Ltd. Vs B.R. Balakrishnan1. In the said judgment the Division Bench has laiddown certain parameters for considering the stay application preferredby the Assessee. It is the contention of the Petitioner that while passingthe impugned orders these parameters are not kept in mind andtherefore, the impugned orders will have to be set aside and thereforethe exercise would have to be kept in mind indicated in KECInternational Ltd. Nothing is shown on behalf of the Respondent as towhy this course of action should not be followed. Reply affidavit is notfiled. 3.In the decision of KEC International Ltd., while settingaside the orders passed in respect of the stay of demand, the DivisionBench had observed that in large number of matters the Court hasfound that such orders have been passed perfunctory by theDepartment only with an idea for recovery before date and withoutproper reasons. In view of the same, the Division Bench laid downcertain parameters for dismissal which parameters reads thus: 3 WP689-18dt 30-10-2018 “(a) While considering the stay application, the authorityconcerned will at least briefly set out the case of theassessee. (b) In cases where the assessed income under theimpugned order far exceeds returned income, the authoritywill consider whether the assessee has made out a case forunconditional stay. If not, whether looking to thequestions involved in appeal, a part of the amount shouldbe ordered to be deposited for which purpose, some shortprima facie reasons could be given by the authority in itsorder. (c) In cases where the assessee relies upon financialdifficulties, the authority concerned can briefly indicatewhether the assessee is financially sound and viable todeposit the amount if the authority wants the assessee to sodeposit. (d) The authority concerned will also examine whetherthe time to prefer an appeal has expired. Generally,coercive measures may not be adopted during the periodprovided by the statute to go in appeal. However, if theauthority concerned comes to the conclusion that theassessee is likely to defeat the demand, it may take recourseto coercive action for which brief reasons may be indicatedin the order, and (e) We clarify that if the authority concerned complieswith the above parameters while passing orders on the stayapplication, then the authorities on the administrative sideof the Department like respondent No. 2 herein need notonce again give reasoned order.” Amrut 4 WP689-18dt 30-10-2018 In our opinion the present case squarely falls within the ambit of law laid down in the KEC International Ltd. 4. 4.In these circumstances, the impugned orders will have tobe set aside and accordingly set aside. The proceedings stand restoredbefore the Income Tax Officer, who will decide the application in thelight of the above parameters which we have culled out. Needless tostate that since we have set aside the orders, no coercive steps be takenagainst the Petitioner pending the adjudication. (e) We clarify that if the authority concerned complieswith the above parameters while passing orders on the stayapplication, then the authorities on the administrative sideof the Department like respondent No. 2 herein need notonce again give reasoned order.” Amrut 4 WP689-18dt 30-10-2018 In our opinion the present case squarely falls within the ambit of law laid down in the KEC International Ltd. 4. 4.In these circumstances, the impugned orders will have tobe set aside and accordingly set aside. The proceedings stand restoredbefore the Income Tax Officer, who will decide the application in thelight of the above parameters which we have culled out. Needless tostate that since we have set aside the orders, no coercive steps be takenagainst the Petitioner pending the adjudication. 5.The writ petition is disposed of in above terms. Prithviraj K. Chavan, J.N.M. Jamdar, J.