G.hemalatha v. The Principal Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2019 CORAM THE HONOURABLE Dr. JUSTICE ANITA SUMANTH Writ Petition No.10605 of 2019& W.M.P.Nos.11097 & 11098 of 2019 G.Hemalatha .. Petitioner vs. 1. The Principal Commissioner of Income Tax - 1, 121 Mahatma Gandhi Road, Nungambakkam, Chennai 600 034 2. The Assistant Commissioner of Income Tax, Central Circle - 1 (3), 121 Mahatma Gandhi Road, Nungambakkam, Chennai 600 034 3. The Commissioner of Income Tax (Appeals) - 18, 121 Mahatma Gandhi Road, Nungambakkam, Chennai 600 034.. Respondents Prayer:- Writ Petition filed under Article 226 of theConstitution of India praying for the issuance of a Writ ofCertiorarified Mandamus to call for the records in PAN: , quash the impugned order in C.No.1571/PCIT/C-1/24/18-19 dated 22.03.2019 passed by the first respondentrejecting the stay petition filed by the petitioner for stay ofdemand for the assessment year 2015-16 as illegal, arbitrary anddevoid of merit and consequently to direct the first respondentto grant stay of recovery proceedings for the assessment year2015-16 till the disposal of the Appeal before the thirdrespondent. Mr.A.P.Srinivas, learned Senior Standing Counsel, takesnotice for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2. Heard Mr.Veerabathran Prashanth, learned counsel, forMr.R.Sivaraman, learned counsel for the petitioner andMr.A.P.Srinivas, learned Senior Standing Counsel, for therespondents. This writ petition is taken up for final disposal,by express consent of both the learned counsel, at the admissionstage itself. 3. This writ petition challenges an order passed by thefirst respondent / The Principal Commissioner of Income Tax, ona stay application filed by the petitioner seeking stay ofrecovery proceedings in respect of a demand arising from orderof assessment dated 31.12.2018 for the assessment year 2015-16. 4. The Stay Application has been filed on 15.02.2019 and thepetitioner has raised therein the existence of a prima faciecase, inability to pay any amount of the disputed tax andbalance of convenience, as arguments in her favour. She hasalso sought a personal hearing. 5. It appears that prior to approaching the firstrespondent, the petitioner had sought a stay before theAssessing Officer who had, vide his order dated 22.03.2019,passed an order rejecting the earlier stay application directingthe Assessee to pay 20% of the disputed demand. 6. The first respondent has, prior to passing of theimpugned order, given opportunity of hearing as prayed for andhas passed a detailed order. After consideration of the factorsof prima facie case, financial stringent and balance ofconvenience, he has called upon the petitioner to remit 20% ofthe impugned demand in three equal monthly instalments. Thebalance of the demand has been stayed for a period of six monthsor till the disposal of the Appeal by CIT (A), whichever isearlier. The Officer has also laid down a condition that theAssessee shall cooperate with the CIT (A) in disposal of theAppeal and no adjournment shall be taken. He has also protectedthe right of the Department to adjust any refund arising in thecase of the Assessee. 7. Mr.A.P.Srinivas defends the impugned order as being awell-reasoned order, requiring no interference by this Court. 8. I agree. As far as prima facie case is concerned, theCommissioner has recorded that the seized material found in thepremises of M/s.Pothy's Private Limited has revealed a runningaccount indicating the payment of cash to the Assessee. A swornstatement has also been recorded by an employee in the premises,who has admitted that the on-money was paid to the Assessee. 7. Mr.A.P.Srinivas defends the impugned order as being awell-reasoned order, requiring no interference by this Court. 8. I agree. As far as prima facie case is concerned, theCommissioner has recorded that the seized material found in thepremises of M/s.Pothy's Private Limited has revealed a runningaccount indicating the payment of cash to the Assessee. A swornstatement has also been recorded by an employee in the premises,who has admitted that the on-money was paid to the Assessee. 9. The petitioner has raised before the Assessing Officerthe point that she was not provided an opportunity to cross-examine the witnesses, though she does not pursue this requestbefore the Commissioner. Moreover, it is upon a holisticconsideration of all relevant factors that the Officer hassought payment of 20% of the disputed demand. In all, the orderis well-considered taking into account the balance ofconvenience of both parties. I see no reason to interfere withthe same. This writ petition is, thus, dismissed. 10. At this juncture, learned counsel for the petitionersubmits that the first Appeal is pending before the thirdrespondent / Commissioner of Income Tax (Appeals) and seeksliberty to make a request for early and expeditious hearing ofthe Appeal. He is granted the same. Consequently, theconnected WMP is closed with no order as to costs. s/d- Assistant Registrar True Copy Sub-Assistant Registrar srkTo1. The Principal Commissioner of Income Tax - 1, 121 Mahatma Gandhi Road, Nungambakkam, Chennai 600 034 2. The Assistant Commissioner of Income Tax, Central Circle - 1 (3), 121 Mahatma Gandhi Road, Nungambakkam, Chennai 600 034 3. The Commissioner of Income Tax (Appeals) - 18, 121 Mahatma Gandhi Road, Nungambakkam, Chennai 600 034 +1 CC to Mr.R.Sivaraman, Advocate sr 35950.+1 CC to Mr.A.P.Srinivas, Advocate sr 34951.Writ Petition No.10605 of 2019 & W.M.P.Nos.11097 & 11098 of 2019 MR(CO)SP(13/05/2019)