George Maijo Industries Private Limitedrepresented By Its Managing Directormr.joseph Maijo2B, Apex Plaza v. The Income Tax Officercorporate Ward 2(3), Chennaiwanapathy Block

IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 25.02.2022 CORAM: THE HON'BLE MR. JUSTICE R.SURESH KUMAR W.P.No.3946 of 2022and W.M.P.No.4090 of 2022 George Maijo Industries Private LimitedRepresented by its Managing DirectorMr.Joseph Maijo2B, Apex Plaza, 5, Nungambakkam High Road,Chennai - 600 034. ... Petitioner Vs. The Income Tax OfficerCorporate Ward 2(3), ChennaiWanapathy Block, No.121, Mahatma Gandhi Road,Nungambakkam,Chennai - 600 034. ... Respondents Prayer: Petition filed under Article 226 of Constitution ofIndia praying for issuance of a Writ of Mandamus, to raise theattachments made by the respondent on the bank accounts of thepetitioner through notice u/s. 226(3) dated 27.01.2022 havingDIN & Notice No. ITBA / COM / F / 1 / 2021-22 / 1039113078(1),ITBA / COM / F / 17 / 2021-22 / 1039123958(1), ITBA / COM / F /17 / 2021-22 / 1039124820(1), ITBA / COM / F / 17 / 2021-22 /1039113357(1), ITBA / COM / F / 17 / 2021-22 / 1039113756(1),ITBA / COM / F / 17 / 2021-22 / 1039113981(1), ITBA / COM / F /17 / 2021-22 / 1039116556(1), ITBA / COM / F / 17 / 2021-22 /1039116327(1), ITBA / COM / F / 17 / 2021-22 / 1039114445(1),ITBA / COM / F / 17 / 2021-22 / 1039115421(1), ITBA / COM / F /17 / 2021-22 / 1039117164(1), ITBA / COM / F / 17 / 2021-22 /1039116790 (1) and Notices u/s. 226 (3), dated 28.01.2022 havingDIN & Notice No.ITBA / COM / F / 17 / 2021-22 / 1039150168(1),ITBA / COM / F / 17 / 2021-22 / 1039149836 (1) and direct therespondent to give opportunity to the petitioner beforeproceeding with the recovery proceeding. For Petitioner : Mr.Ravi KannanFor Respondent : Mrs.Hema Muralikrishna Senior Standing Counsel ORDER The prayer sought for herein is for a writ of mandamus, toraise the attachments made by the respondent on the bankaccounts of the petitioner through notice u/s. 226(3) dated27.01.2022 having DIN & Notice No. ITBA / COM / F / 1 / 2021-22 / 1039113078(1), ITBA / COM / F / 17 / 2021-22 / 1039123958(1), ITBA / COM / F / 17 / 2021-22 / 1039124820(1), ITBA / COM /F / 17 / 2021-22 / 1039113357(1), ITBA / COM / F / 17 / 2021-22 / 1039113756(1), ITBA / COM / F / 17 / 2021-22 / 1039113981(1), ITBA / COM / F / 17 / 2021-22 / 1039116556(1), ITBA / COM /F / 17 / 2021-22 / 1039116327(1), ITBA / COM / F / 17 / 2021-22 / 1039114445(1), ITBA / COM / F / 17 / 2021-22 / 1039115421(1), ITBA / COM / F / 17 / 2021-22 / 1039117164(1), ITBA / COM /F / 17 / 2021-22 / 1039116790 (1) and Notices u/s. 226 (3),dated 28.01.2022 having DIN & Notice No.ITBA / COM / F / 17 /2021-22 / 1039150168(1), ITBA / COM / F / 17 / 2021-22 /1039149836 (1) and direct the respondent to give opportunity tothe petitioner before proceeding with the recovery proceeding. 2. In respect of Assessment Years 2012-13, 2015-16, 2016-17, 2017-18, assessment orders have been passed against thepetitioner assessee. Insofar as the Assessment Years 2012-13,2015-16 and 2016-17 are concerned, though Appeal filed beforethe Commissioner of Income Tax (Appeals) [in short "CIT(Appeals)"], the order have been confirmed, as against which,the petitioner assessee filed further appeal before the ITAT,where those appeals are still pending. 3. Insofar as the Assessment Year 2017-18 is concerned, asagainst the assessment order, appeal was filed before the CIT(Appeals), which is pending before the said authority. 4. In the meanwhile, several Bank accounts of thepetitioner had been attached, by which, according to thepetitioner, the entire business and other activities of thepetitioner have been completely crippled. 5. Therefore in order to get a solace to the grimsituation, according to the petitioner, he has already moved astay application of the demand in respect of the Assessment Year2012-13 before the ITAT, where, having considered the same, itwas rejected by the ITAT. 3. Insofar as the Assessment Year 2017-18 is concerned, asagainst the assessment order, appeal was filed before the CIT(Appeals), which is pending before the said authority. 4. In the meanwhile, several Bank accounts of thepetitioner had been attached, by which, according to thepetitioner, the entire business and other activities of thepetitioner have been completely crippled. 5. Therefore in order to get a solace to the grimsituation, according to the petitioner, he has already moved astay application of the demand in respect of the Assessment Year2012-13 before the ITAT, where, having considered the same, itwas rejected by the ITAT. 6. Insofar as the other Assessment Years, i.e., 2015-16,2016-17 as well as 2017-18 are concerned, no such stay petitionhad been filed either before the CIT (Appeals) or before theITAT. 7. Under these circumstances, the petitioner has moved thepresent writ petition with the aforesaid prayer, where, Mr.RaviKannan, learned counsel appearing for the petitioner assessee https://hcservices.ecourts.gov.in/hcservices/ has made a fervent appeal before this Court stating that, thepetitioner is ready and willing to make some payment of thedemand, which may be indicated by this Court till the petitionerapproaches the ITAT in respect of AY 2015-16 and 2016-17 and CIT(Appeals) in respect of 2017-18 to file appropriate stayapplication and if such applications are filed, that mayalso be directed to be considered on merits by taking intoaccount the amount paid by the petitioner, pursuant to thedirection to be given by this Court at this juncture in thiswrit petition as a condition precedent for the grant of stay ofthe demand. 8. Insofar as the AY 2012-13 is concerned, since the verystay petition filed before the ITAT itself was dismissed, thepetitioner had no option except to file Tax Case Appeal beforethis Court, where also the same interim arrangement can be madetill the petitioner approaches this Court by filing the Tax CaseAppeal. 9. In response to the said submissions made by the learnedcounsel appearing for the petitioner, Mrs.Hema Murali Krishnan,learned Senior Panel Counsel appearing for the respondent wouldsubmit that, in respect of the AY 2012-13 is concerned, the verystay petition filed by the petitioner, having been consideredand dismissed by the ITAT, against which, so far no appeal wasfiled. Like that, in respect of AY 2015-16 and 2016-17 also,though appeal has been filed before ITAT, where admittedly, sofar no stay petition had been filed by the petitioner assessee. 10. She would also submit that, in respect of AY 2017-18 isconcerned, appeal is pending before the CIT (Appeals), beforewhom also, no stay petition had been filed and in that case,even a stay petition could have been filed before the AssessingAuthority invoking Section 220 (6) of the Income Tax Act. 11. Therefore, the learned Standing counsel would submitthat, insofar as the present plea made by the petitioner to liftthe attachment made in respect of the Bank Account is concerned,unless and until the petitioner make some substantial payment ofthe demand in respect of each Assessment Year, the plea raisedby the petitioner to lift the attachmentof the Bank Accountcannot be considered by the Revenue, hence, the present pleamade by the petitioner is without any merit and hence, she seeksfor dismissal of this writ petition. 12. I have considered the said submissions made by thelearned counsel appearing for both sides and have perused thematerials placed before this Court. 13. Admittedly the petitioner suffered with order ofassessment as well as the order of first Appellate Authorityatleast in respect of three Assessment Years. For AY 2017-18 isconcerned, the appeal is pending before the CIT (Appeals). 12. I have considered the said submissions made by thelearned counsel appearing for both sides and have perused thematerials placed before this Court. 13. Admittedly the petitioner suffered with order ofassessment as well as the order of first Appellate Authorityatleast in respect of three Assessment Years. For AY 2017-18 isconcerned, the appeal is pending before the CIT (Appeals). 14. Except AY 2012-13, where they unsuccessfully filed thestay petition, for all other Assessment Years, even that attempthas not been made by the petitioner assessee. Now he has comeforward before this Court making a hue and cry against theattachment made in respect of the Bank Accounts of thepetitioner with further rider that, the petitioner is ready andwilling to make some payment, that is some percentage of demandwhich may be indicated or stipulated by this Court as acondition precedent for the consideration of grant of stay ofthe demand, for the time being, enabling the petitioner assesseeto approach the appropriate forum namely, ITAT, CIT (Appeals)and Assessing Authority, as the case may be seeking for a stayof the demand in respect of the concerned Assessment Year. 15. In normal course, if an appeal is filed, which ispending, it is open to the assessee to make an application forstay, even before the Assessing Authority, as there is nocondition precedent as a prior deposit for entertaining theappeal before the Appellate Authority and in such case, theAssessing Authority can use his discretion, of course byimposing certain conditions, can treat the assessee is notliable to to pay the tax for the present, that means a stay canbe granted. 16. However, the said stay cannot be granted by way ofblanket stay, as the provision namely, Section 220 (6) of theAct makes it mandatory that a condition shall be imposed, ofcourse from the discretion of the Assessing Authority. 17. The petitioner has missed to file any such applicationin respect of three Assessment Years, i.e., 2012-13, 2015-16 and2016-17. In all these years, the Appeal is now pending beforethe ITAT. 18. Out of these three Assessment Years, for AY 2012-13, asstated above, the petitioner has made an unsuccessful attempt toseek for stay. Even against the said order passed by ITAT nofurther appeal was filed by way of Tax Case Appeal before thisCourt. 19. When that being the situation, the assessee now comeforward to make payment, which can be taken as a condition formaking some interim arrangement, till the petitioner approachesthe appropriate forum, to seek for stay of the demand by filing necessary application. 20. Taking into account of these totality of the factualmatrix of this case and having regard to the submissions made bythe learned counsel for the petitioner as well as the respondentRevenue, this Court is inclined to dispose of this writ petitionwith the following orders : (i) That the petitioner shall makepayment of 20% of the demand in respect of AY2015-16, 2016-17 and 2017-18 and 30% of thedemand for AY 2012-13, within a period offour weeks from today. (ii) On such condition, there shall bean order of stay for a period of two months,within which, the petitioner shall approacheither the ITAT or the CIT (Appeals) or theAssessing Authority as the case may be inrespect of AY 2015-16 to 2017-18. (iii) Insofar as AY 2012-13 isconcerned, such a course of action can beadopted by the petitioner assessee againstthe order passed by the ITAT in his earlierapplication for stay by filing appropriateappeal before the forum concerned, inaccordance with law. (iv) In view of the stay granted, aftermaking the payment, as indicated above, theattachment made in respect of the BankAccounts can be lifted by the respondentRevenue. (ii) On such condition, there shall bean order of stay for a period of two months,within which, the petitioner shall approacheither the ITAT or the CIT (Appeals) or theAssessing Authority as the case may be inrespect of AY 2015-16 to 2017-18. (iii) Insofar as AY 2012-13 isconcerned, such a course of action can beadopted by the petitioner assessee againstthe order passed by the ITAT in his earlierapplication for stay by filing appropriateappeal before the forum concerned, inaccordance with law. (iv) In view of the stay granted, aftermaking the payment, as indicated above, theattachment made in respect of the BankAccounts can be lifted by the respondentRevenue. (v) It is made clear that, if thepetitioner assessee has not complied with thepayment schedule as indicated above, the staygranted now through this order shall standautomaticallyvacatedwithoutfurtherreference to this Court for any furtherorders. (vi) It is further made clear that,after complying the aforesaid, if thepetitioner approaches the concerned forum,i.e., ITAT, CIT (Appeals) as well as theAssessing Authority as the case may be andstay applications are made, the same shall beconsidered objectively by taking into accountthat the conditional order passed by this Court is complied with by the petitioner andbased on which the stay petition shall bedecided accordingly. (vii) The effect of non-compliance ofthis order as indicated above, in anyrespect, either payment or approaching theconcerned authorities as indicated above byfiling stay petition, would entile theRevenue to proceed further, as if that thepetitioner assessee has become a defaultor inmaking the payment in respect of demand forfour Assessment Years." 21. With these directions and observations, this writpetition is disposed of. No costs. Consequently, connectedmiscellaneous petition is closed. Sd/-Assistant Registrar(CS-CCC) //True copy// tsvn Sub Assistant Registrar To The Income Tax OfficerCorporate Ward 2(3), ChennaiWanapathy Block, No.121, Mahatma Gandhi Road,Nungambakkam, Chennai - 600 034. +1cc to Mrs.Hema Muralikrishna, Advocate SR.No.12910 +1cc to Mr.Ravi Kannan, Advocate SR.No.12879 W.P.No.3946 of 2022 MG(CO)GMY(17/03/2022)