Chavara Trust Cmi Ashram v. Union Of India Through Assistant Commissioner Ofincome Tax (Exemptions), Aurangabad

1 wp 3972.2020 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD 996 WRIT PETITION NO. 3972 OF 2020 CHAVARA TRUST CMI ASHRAM THROUGH ITS SECRETARYSEBI THOMAS PARAKKAL VERSUS UNION OF INDIA THROUGH ASSISTANT COMMISSIONER OFINCOME TAX (EXEMPTIONS), AURANGABAD ... Advocate for Petitioner: Mr. Shah Subodh P. Standing Counsel for Respondent/Sole: Mr. Alok M. Sharma ... CORAM:S. V. GANGAPURWALA &SHRIKANT D. KULKARNI, JJ.DATE:14[th] JANUARY, 2021 PER COURT: 1.Mr. Shah, learned Counsel for the petitionersubmits that the petitioner is challenging theassessment order so also order directingpre-deposit. 2.Mr. Shah, learned Counsel submits that thepetitioner by way of abundant caution has alsofiled an appeal against the order of assessment,however that would not be an impediment toentertain the writ under Article 226 of theConstitution. The assessment order is passed in 2 wp 3972.2020 breach of the principles of natural justice. Thelearned Counsel relies on the judgment of theDivision Bench of this Court in case of VodafoneIndia Limited Vs. Union of India and othersreported in (2014) 265 CTR 42. The learned Counselfurther submits that directing petitioner todeposit 20% of the amount as pre-deposit is tooharsh, hardship would be caused to the petitioner.The learned Counsel submits that the appellateauthority ought to have considered that theassessment order is without affording properopportunity to the petitioner, only 24 hours timewas provided to the petitioner to reply the showcause notice. As no proper opportunity has beengiven, the pre-deposit ought to have been waived.The learned Counsel further submits that it is notthe thumb rule that the appellate authority has toorder 20% pre-deposit. The discretion vests withthe appellate authority to direct deposit of alessor amount or in deserving cases may not insistfor pre-deposit. The learned Counsel relies on thejudgment of the Apex Court in case of Benera 3 wp 3972.2020 Valves Ltd. and others Vs. Commissioner of CentralExcise and another reported in (2006) 13 SCC 347. 3.Mr. Sharma, learned Counsel for the Revenuesubmits that the petitioner did not co-operateduring the assessment proceedings. The appellateauthority has considered the said aspect whilepassing the order directing the petitioner todeposit 20% amount as pre-deposit. The noncompliance during the course of assessmentproceedings does not qualify the petitioner fornon payment of 20% of the demand rates. 4.Mr. Shah, the learned Counsel submits thatafter the appeal was filed, the respondent hasrecovered some amount. The amount of refund thatwas entitled to has been adjusted by the Revenuein the demand claim in the assessment order,subject matter of the present petition. 5.As far as challenge to the assessment orderis concerned, we are not inclined to exercise ourwrit jurisdiction under Article 226 of the 4 wp 3972.2020 Constitution as the petitioner has already availedthe remedy of appeal. The petitioner may prosecuteits appeal before the appellate authority inaccordance with law. 6.As far as the order of pre-deposit isconcerned, the petitioner tried to contend anddemonstrate that the petitioner was not givenproper opportunity in as much as sufficient timewas not given to the petitioner to place on recordits say and the documents to be relied upon andthe assessment order was passed in haste. Ofcourse, it is the contention of the petitionerwhich the appellate authority will have toconsider as per the record and the material placedbefore it. 7.It appears that the notice was issued to thepetitioner on 15.12.2019. It is case of thepetitioner that the same was received on16.12.2019 and the information was to be furnishedon 17.12.2019. The assessment order was passed on22.12.2019. 5 wp 3972.2020 8.Considering the aforesaid factual matrix of 6.As far as the order of pre-deposit isconcerned, the petitioner tried to contend anddemonstrate that the petitioner was not givenproper opportunity in as much as sufficient timewas not given to the petitioner to place on recordits say and the documents to be relied upon andthe assessment order was passed in haste. Ofcourse, it is the contention of the petitionerwhich the appellate authority will have toconsider as per the record and the material placedbefore it. 7.It appears that the notice was issued to thepetitioner on 15.12.2019. It is case of thepetitioner that the same was received on16.12.2019 and the information was to be furnishedon 17.12.2019. The assessment order was passed on22.12.2019. 5 wp 3972.2020 8.Considering the aforesaid factual matrix of the case, we pass the following order. 9. The order of the appellate authority directing the petitioner to deposit 20% amount as pre-deposit is modified. The petitioner shalldeposit 10% of its liability amount pursuant tothe assessment as pre-deposit. 10. Writ Petition is accordingly disposed of. Nocosts. [SHRIKANT D. KULKARNI, J.] [S. V. GANGAPURWALA, J.]marathe