J.dinakaran v. The Registrar, Income Tax Appellate Tribunal, A Bench, Chennai

In the High Court of Judicature at Madras Dated : 21.1.2019Coram :The Honourable Mr.Justice T.S.SIVAGNANAMandThe Honourable Mr.Justice N.SATHISH KUMAR Writ Petition Nos.1392, 1397, 1401, 1404, 1408, 1410 and 1416 of2019 & WMP.Nos.1552, 1554, 1556, 1558, 1560, 1561, 1563 to 1570 of 2019 J.Dinakaran...Petitioner in all the WPsVs 1.The Registrar, Income Tax Appellate Tribunal, A Bench, Chennai. 2.The Commissioner of Income Tax (Appeals)-19, Chennai-34. 3.The Assistant Commissioner of Income Tax, Central Circle 3(2), 46, Mahatma Gandhi Road, Chennai-34. ...Respondents in all the Wps PETITIONS under Article 226 of The Constitution of Indiapraying for the issuance of Writs of Certiorari to call for therecords on the file of the first respondent in connection withthe common order dated 21.12.2018 made in S.P.Nos.393 to399/Chny/2018 in ITA.Nos.2841 to 2847/Chny/2018 for theassessment years from 2009-10 to 2015-16. COMMON ORDER (Order of the Court was made by T.S.SIVAGNANAM,J) These writ petitions have been filed by the assesseechallenging the common order dated 21.12.2018 passed by theIncome Tax Appellate Tribunal, 'A' Bench, Chennai (hereinafter https://hcservices.ecourts.gov.in/hcservices/ called the Tribunal) in the stay petitions filed by the assesseein S.P.Nos.393 to 399/Chny/2018 in ITA.Nos. 2841 to2847/Chny/2018 for the assessment years from 2009-10 to 2015-16. 2. The assessee filed petitions before the Tribunal prayingfor stay of the outstanding demand of Rs.9,33,16,430/-. TheTribunal, by the impugned common order, after taking note of thehardship faced by the assessee on account of attachment of thebank accounts, granted stay of the demand subject to payment ofinstalment of Rs.50 lakhs payable on or before 30[th]/ 31[st] of everyEnglish calendar month and the first instalment should be paidon or before 31.12.2018. Being aggrieved by the said condition,the assessee is before this Court by way of these writ petitions. 3. We have heard Mr.R.C.Paulkanakaraj, learned counselassisted by Mr.S.Selvathirumurugan, learned counsel for thepetitioner and Mr.A.P. Srinivas, learned Senior Standing Counselaccepting notice for respondents 2 and 3. 4. The short issue, which falls for consideration, is as towhether the condition imposed by the Tribunal for grant of staycan be stated to be an onerous condition. 5. The assessee's case is that after the search wasconducted, the assessee filed revised returns for all theassessment years and paid a sum of Rs.10,12,88,401/-. TheAssessing Officer completed the assessment vide order dated29.12.2016determiningthetotaltaxpayableatRs.57,49,72,097/-. After giving credit to the amount paid by theassessee namely Rs.10,12,88,401/-, the remaining amount ofRs.47,56,83,690/- is payable. 6. At the time of filing the appeals as against theassessment orders i.e after 29.12.2016, the assessee paid atotal sum of Rs.7,15,18,818/-. The appeals filed by the assesseebefore the Commissioner of Income Tax (Appeals) [for brevity,the CIT(A)] were partly allowed vide orders dated 30.7.2018, asagainst which, the assessee preferred appeals before theTribunal, in which, the stay petitions were filed, and they weredisposed of by the Tribunal vide the common impugned order. 7. The case of the assessee is that the CIT(A) did notappreciate the documents submitted by the assessee namely thebalance sheet along with return of income wherein the assesseeadopted accretion of net asset method for the purpose ofcomputing the taxable income as the books of accounts were notproperly maintained earlier to the search operations. Further,the assessee would contend that the other documents, which wereproduced by the assessee, were not considered by the CIT(A). Sofar as the prayer for stay is concerned, the assessee contended https://hcservices.ecourts.gov.in/hcservices/ 7. The case of the assessee is that the CIT(A) did notappreciate the documents submitted by the assessee namely thebalance sheet along with return of income wherein the assesseeadopted accretion of net asset method for the purpose ofcomputing the taxable income as the books of accounts were notproperly maintained earlier to the search operations. Further,the assessee would contend that the other documents, which wereproduced by the assessee, were not considered by the CIT(A). Sofar as the prayer for stay is concerned, the assessee contended https://hcservices.ecourts.gov.in/hcservices/ that on account of various factors, his business operations werevery much affected, that the bank account was also frozen andthat consequently, he was unable to carry on business. 8. On a perusal of the common impugned order, we find thatthe Tribunal accepted the assessee's case that he is facinghardship on account of attachment of bank account. However,while granting stay order, the Tribunal imposed a condition thata sum of Rs.50,00,000/- should be paid on or before 30[th]/31[st] ofevery English calendar month. What is to be noted is that theTribunal has not fixed any outer time limit for the amounts tobe paid by the assessee for being entitled to an order of stay. 9. On a reading of the common impugned order, one canunderstand that the Tribunal directed the assessee to pay theentire outstanding in instalments of Rs.50 lakhs in everyEnglish calendar month. In our considered view, while grantingan interim order, what is required to be seen is as to whetherthe assessee made out a prima facie case, as to whether thebalance of convenience is in favour of the assessee and as towhether the assessee will be put to irreparable hardship if theinterim order is not granted. Further, the Tribunal does notrecord any finding that the assessee has not made out a primafacie case. So far as the aspect of hardship is concerned, theTribunal itself was conscious of the fact that on account ofattachment of the bank account, the assessee was put tohardship. The third aspect namely balance of convenience has notbeen adverted to by the Tribunal. 10. In any event, we are of the considered view that if theentire balance outstanding is directed to be paid, it may renderthe appeal petitions themselves as infructuous. Therefore, whilegranting a reprieve to the assessee, we also intend to protectthe interests of the Revenue by slightly modifying the orderpassed by the Tribunal. 11. Accordingly, the writ petitions are disposed of bydirecting the petitioner to pay a sum of Rs.3,00,00,000/-(Rupees three crores only) in two instalments. The firstinstalment of Rs.1,00,00,000/- (Rupees one crore only) shall bepaid on or before 31.1.2019. The remaining amount ofRs.2,00,00,000/- (Rupees two crores only) shall be paid eitherin one lumpsum or in two instalments on or before 15.3.2019. Ifthe assessee complies with the above conditions within the timestipulated, there will be a stay in respect of the remainingamount as demanded. If the petitioner does not comply with theabove conditions within the time stipulated, the benefit of thisorder will not enure to the petitioner and the writ petitionsshall stand automatically dismissed. The Tribunal shall take note of this order and accordingly fix the date for hearing ofthe appeals. No costs. Consequently, the connected WMPs areclosed. Sd/- Assistant Registrar(CCC) //True Copy// RS Sub Assistant Registrar To 1.The Registrar, Income Tax Appellate Tribunal,A Bench, Chennai. 2.The Commissioner of Income Tax (Appeals)-19, Chennai-34. 3.The Assistant Commissioner of Income Tax, Central Circle 3(2), 46,Mahatma Gandhi Road, Nungambakkam Chennai-34. +3cc to Mr.S.Selvathirumurugan, Advocate, S.R.No.4088 WP.No.1392 of 2019etc. cases PP(CO)GSP(23/01/2019)