Haryana State Co-Operative Supply & Marketing Federation Ltd.,Panchkula v. Commissioner Of Income Tax, Panchkula And Another

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. C.W.P. No. 4345 of 2008DATE OF DECISION : 24.03.2008 Haryana State Co-operative Supply & Marketing Federation Ltd.,Panchkula .... PETITIONER Versus Commissioner of Income Tax, Panchkula and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTALHON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:Mr. Rajesh Garg, Advocate, for the petitioner. Mr. Yogesh Putney, Advocate,for the respondents. * * * SATISH KUMAR MITTAL , J. The petitioner has filed this writ petition under Articles226/227 of the Constitution of India for setting aside the notice dated18.2.2008 (Annexure P-3), issued by the Assessing Officer, respondentNo.2 herein, for recovery of the additional demand in terms of theassessment order dated 24.12.2007 (Annexure P-1) passed by him; andfurther for issuance of a writ in the nature of mandamus directingrespondent No.2 not to recover the disputed demand during the pendency ofthe first appeal filed by the petitioner. In the present case, the petitioner filed return of its income forthe assessment year 2005-06, in which it claimed exemption under Sections80P (2) (e) of the Income Tax Act, 1961 (hereinafter referred to as `the Act')being rent of the godowns. The Assessing Officer, while framing theassessment under Section 143 (3) of the Act, disallowed the exemption,claimed by the petitioner. It is the case of the petitioner that in the earlier assessment year,the similar claim made by it was allowed and the said order was upheld inappeal. It is the further case of the petitioner that against the assessmentorder, it has already filed an appeal before the Commissioner of Income Tax(Appeals) [hereinafter referred to as `the CIT (A)], which is pending.Therefore, the petitioner moved application before the Assessing Officer forkeeping the disputed demand in abeyance, in view of the Circular No. 530dated 6.3.1989, passed by the Central Board of Direct Taxes under Section119 of the Act. The Assessing Officer, without considering the prayer andby ignoring the aforesaid Circular, asked the petitioner to deposit thedisputed amount of additional demand. In that situation, the petitioner hasfiled the instant petition. We have heard counsel for the parties. Undisputedly, the appeal filed by the petitioner against theassessment order is still pending. It has also not been disputed by counselfor the respondents-revenue that for the earlier assessment year of thepetitioner-assessee, the Income Tax Appellate Tribunal has decided the similar issue in favour of the assessee. In view of the aforesaid admitted position as well as theCircular No. 530 dated 6.3.1989, which provides that where the demand indispute relates to issues that have been decided in favour of the assessee inan earlier year by an appeallate authority or court in assessee's own case, theassessee shall not be treated in default in respect of amount attributable tosuch disputed points so long as such appeal remains un-disposed of, wedeem it appropriate that till the disposal of the appeal of the petitioner bythe CIT (A), respondent No.2 will keep the disputed amount in abeyance.However, we further direct the CIT (A) to dispose of the appeal filed by thepetitioner, within a period of two months. Petition stands disposed of accordingly. ( SATISH KUMAR MITTAL )JUDGE March 24, 2008 ndj ( RAKESH KUMAR GARG )JUDGE