K.pondurai v. The Assistant Commissioner Of Income Tax Non Corporate Circle-22

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU K.Pondurai ... Petitionervs. 1.The Assistant Commissioner of Income TaxNon Corporate Circle-22No.7, Ramakrishna Street,First Floor, West TambaramChennai-600 045. 2.The Commissioner of Income Tax (Appeals) 10Ayyakar BhavanNo.121, Uthamar Gandhi Road,Nungambakkam, Chennai-600 034. ..Respondents Writ petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorari, to call for the records ofthe first respondent in F.No.28/AAEPP8065A/2018-2019 and toquash the impugned notice dated 31.10.2018 demanding to payarrears of tax for the assessment year 2011-2012 withoutdetermination or quantification of the amount of tax pertainingto collection of disputed taxes. For Respondents : Mrs.Hema Muralikrishnan standing counsel O R D E R Mrs.Hema Muralikrishnan, learned standing counsel takesnotice for the respondents. By consent of the parties, the mainwrit petition is taken up for final disposal at the admissionstage itself. 2. The petitioner is aggrieved against the proceedings ofthe first respondent dated 31.10.2018, wherein and whereby thepetitioner was called upon to pay the demand of tax withinterest on the reason that mere filing of appeal against theorder of assessment is not a bar for recovering the tax due. https://hcservices.ecourts.gov.in/hcservices/ 3. Heard both sides. 4. It is seen that in respect of the assessment year 2011-2012, an order of assessment was passed and the matter was takenup for appeal by the Assessee before the Commissioner of IncomeTax (Appeals) and further before the Income Tax AppellateTribunal. It is further seen that the Tribunal, by order dated10.01.2018, remitted the matter back to the Assessing Officer tore-examine the matter afresh in the light of the materialavailable on record and thereafter, decide the issue afresh inaccordance with law. Consequently, the Assessing Officer haspassed an order of assessment dated 29.08.2018 and therectification petition filed by the petitioner has also came tobe dismissed on 25.09.2018. The petitioner went on appealbefore the First Appellate Authority viz., the second respondentherein along with the stay petition filed on 05.10.2018. It isnot in dispute that the stay petition is pending before thesecond respondent. In the meantime, the impugned proceedingswas issued on 31.10.2018 as stated supra. 5. The grievance of the petitioner before this Court is thatsince the stay petition is pending before the secondrespondent/First Appellate Authority, the first respondent isnot justified in issuing the impugned demand without evenwaiting for an order to be passed by the second respondent inthe stay petition. 6. The learned standing counsel for the respondents admittedthe fact that the stay petition filed by the petitioner is stillpending before the second respondent. 7. When such being the factual position, this Court is ofthe view that it is for the second respondent/First AppellateAuthority to consider the stay petition and pass orders on thesame on merits and in accordance with law, without loss offurther time. Accordingly, this writ petition is disposed of inthe following terms: (a) The second respondent shall takeup the stay petition filed on 05.10.2018and pass orders on the same on merits andin accordance with law, within a period ofthree weeks from the date of receipt of acopy of this order. (b) Till an order is passed by thesecond respondent as stated supra, theimpugned demand shall be kept in abeyance. (c) It is made clear that this Courtis not expressing any view on the merits https://hcservices.ecourts.gov.in/hcservices/ of the matter, as it is for the secondrespondent to consider and decide. No costs. Consequently, connected miscellaneous petition isclosed. Sd/- Assistant Registrar(CS IX) (a) The second respondent shall takeup the stay petition filed on 05.10.2018and pass orders on the same on merits andin accordance with law, within a period ofthree weeks from the date of receipt of acopy of this order. (b) Till an order is passed by thesecond respondent as stated supra, theimpugned demand shall be kept in abeyance. (c) It is made clear that this Courtis not expressing any view on the merits https://hcservices.ecourts.gov.in/hcservices/ of the matter, as it is for the secondrespondent to consider and decide. No costs. Consequently, connected miscellaneous petition isclosed. Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant RegistrarTo1.The Assistant Commissioner of Income TaxNon Corporate Circle-22No.7, Ramakrishna Street,First Floor, West TambaramChennai-600 045.2.The Commissioner of Income Tax (Appeals) 10Ayyakar BhavanNo.121, Uthamar Gandhi Road,Nungambakkam, Chennai-600 034.+1cc to Mr.J.Balachander, Advocate sr.no.77810Writ Petition No.30180 of 2018rsy(co)nr 15/11/2018