Kalyanasundaram Sureshold v. The Deputy Commissioner Of Income Tax, Non Corporate Circle 2, Room

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM andTHE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBARAYON W.P.No.9782 of 2019and Kalyanasundaram SureshOld No.12A, New No.24,East Road, West CIT Nagar,Nandanam,Chennai – 600 035. ..Petitioner Versus 1. The Deputy Commissioner of Income Tax, Non Corporate Circle 2, Room No.320, 3[rd] Floor, Wanaparthy Block, No.121, MG Road, Nungambakkam, Chennai – 600 034. 2. The Assistant Registrar, Income Tax Appellate Tribunal, Chennai A-3, II Floor, Rajaji Bhavan, Besant Nagar, Chennai – 600 090 ..Respondents Writ Petition under Article 226 of the Constitution ofIndia praying for issuance of Writ of Certiorarified Mandamus,to call for the records pertaining to the order in StayApplication No.33/CHNY/2019 dated 18/02/2019 passed by theHon'ble Income Tax Appellate Tribunal, 'C' Bench, Chennai andquash the same as illegal, arbitrary and violative of principlesof natural justice and further be please to direct the 2[nd]respondent to hear and decide the Stay ApplicationNo.33/CHNY/2019 of the petitioner on merits and pass such otheror further orders as may deem fit and proper in thecircumstances of this case and thus render justice. For Respondents: M/s.HemaMuralikrishnan Senior Standing counsel ORDER [Order of the Court was made by T.S.SIVAGNANAM, J.] This writ petition has been filed by the assessee, prayingfor issuance of Writ of Certiorarified Mandamus to call for therecords relating to the order dated 18.02.2019 passed by theIncome tax Appellate Tribunal ('the Tribunal' for brevity), 'C'Bench, Chennai, rejecting the Stay application filed by thepetitioner / assessee on the ground that no prima facie case hasbeen made out by the petitioner / assessee and no financialhardship was administered before the Tribunal. 2. When the writ petition was placed before us pursuant tothe directions of the Hon'ble Chief Justice, the learned counselappearing for the petitioner / assessee sought for interimprotection as coercive action may be initiated by the Departmentto Recover the tax and penalty as quantified by the AssessingOfficer in its order dated 14.03.2016 passed under Section 143(3) of the Income Tax Act, 1961 ('the Act' for brevity). Afterconsidering the submissions made before us, we passed thefollowing interim order on 11.06.2018: “We have heard Mr.K.Ravi, learned counsel for thepetitioner and Mr.N.Senthil Kumar, learned Counsel forthe first respondent. 2. This writ petition has been filed challengingthe order passed by the Income Tax Appellate Tribunal'C' Bench, Chennai. In the stay petition filed by thepetitioner before the Commissioner of Income Tax(Appeals) – 2, Chennai, the Commissioner has dismissedthe appeal vide an order dated 28.12.2018 inI.T.A.No.22/2016-17. 3. On rejection of the said order, it is seen thatthe learned counsel for the petitioner has circulated aletter of adjournment. However, the Tribunal has notinclined to adjourn the matter and dismissed the staypetition on the ground that no prima facie case is infavour of the assessee and no financial hardship isdemonstrated before the Tribunal. We find from the staypetition that assessee has pointed out 9 reasons as towhy he is seeking for stay and that there is alikelihood that all the major issues raised in theappeal will be decided in favour of the assessee. 4. Furthermore, the assessee has pointed out thatthey have already paid 25% of the disputed demand andif further condition is imposed, it would not only beuntenable but it will be unbearable hardship and painto the assessee. The assessee also pleaded that seriousand irreparable loss would be inflicted upon theassessee, if stay is not granted. We find that theTribunal did not assign any substantial reasons and it come to the conclusion that no prima facie case is madeout by the petitioner. come to the conclusion that no prima facie case is madeout by the petitioner. 5. In any event, we do not propose to go into thecontroversy, but we propose to stay all furtherproceedings pursuant to the order of assessment dated14.03.2016 as confirmed by the Commissioner of Appealsin his order dated 28.12.2018 subject to the conditionthat petitioner/assessee pays a sum of Rs.8,00,000/- onor before 12 weeks from the date of receipt of copy ofthis order in one lump-sum or in installments withintime frame fixed by this Court. In the event ofdefault, the order of interim stay would standautomatically vacated. If the assessee complies withthe above order, the Tribunal shall take up the case onmerits and in accordance with law.” 3. It is represented before us by the learned counsel forthe petitioner / assessee that the condition imposed by thisCourt in the above mentioned order has been complied with. 4. We have heard Mr.K.Ravi, learned counsel appearing forthe petitioner/assessee and M/s.Hema Muralikrishnan, learnedSenior Standing Counsel for the respondents. 5. Taking into consideration the fact that even before theassessee had approached the Tribunal, the assessee had paid 25%of the disputed tax and as per the above orders, a further sumof Rs.8,00,000/- had already been remitted. Therefore, we are ofthe considered view that the interest of the revenue issufficiently safeguarded and nothing more is required to be doneand the order of stay, which was initially granted on 11.06.2019should continue till the appeal is heard and disposed of by theTribunal. 6. In the light of the above, the writ petition is allowedand the impugned order is set aside and in the light of thereasons assigned above, there shall be an order of interim stayof the demand raised by the Assessing Officer pursuant to theorder of assessment dated 14.03.2016, till the appeal filed bythe assessee before the Tribunal is heard and disposed of onmerits and in accordance with law. No costs. Consequently,connected miscellaneous petitions are closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To 1. The Income Tax Appellate Tribunal, 'C' Bench, Chennai. 'C' Bench, Chennai. 2. The Deputy Commissioner of Income Tax, Non Corporate Circle 2, Room No.320, 3[rd] Floor, Wanaparthy Block, No.121, MG Road, Nungambakkam, Chennai – 600 034. Non Corporate Circle 2, Room No.320, 3[rd] Floor, Wanaparthy Block, No.121, MG Road, Nungambakkam, Chennai – 600 034. 3. The Assistant Registrar, Income Tax Appellate Tribunal, Chennai A-3, II Floor, Rajaji Bhavan, Besant Nagar, Chennai – 600 090 Income Tax Appellate Tribunal, Chennai A-3, II Floor, Rajaji Bhavan, Besant Nagar, Chennai – 600 090 +1cc to M/s.Hema Muralikrishnan, Advocate in SR.NO..33321 W.P.No.9782 of 2019 PP(CO)RV(04/11/2020)