M/S. Doshi Estates, Rep. By Its v. The Assistant Commissioner Of Income Tax Non-Corporate Circle - 3, Room

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.02.2019 CORAM THE HONOURABLE Dr. JUSTICE ANITA SUMANTHWrit Petition No.4582 of 2019 & W.M.P.Nos.5171, 5174 to 5176 of 2019 M/s. Doshi Estates, Rep. by its Partner, Mr.Mehul H.Doshi 3H Century Plaza 3rd Floor, No. 560 Anna Salai Teynampet Chennai - 600018... Petitionervs. 1 The Assistant Commissioner of Income Tax Non-Corporate Circle - 3, Room No. 623A, 6th Floor, Wanarpathy Block, 121 Mahatma Gandhi Road, Nungambakkam, Chennai – 600034 2 The Commissioner of Income Tax (Appeals) - 4 121 Mahatma Gandhi Road, Nungambakkam, Chennai – 600034 3 M/s. South Indian Bank, Triplicane Branch, Rep. by its Branch Manager, 50 Triplicane High Road, Triplicane, Chennai – 600005 4 M/s. State Bank of India, Kilpauk Branch, Rep. by its Branch Manager No. 22A Taylors Road Kilpauk Chennai - 600010 .. Respondents Prayer:- Writ Petition filed under Article 226 of theConstitution of India to issue a Writ of Certiorarified mandamusCalling for the records on the file of the 1st respondent inPAN. AAGFD4592A in issuing the impugned notice u/s. 226(3) ofthe Income Tax Act 1961 dated 08.02.2019 and quash as illegal,arbitrary and devoid of merit and consequentially direct the 1st respondent to grant say of all further recovery proceedingspertaining to the AY 2012-13 pending disposal of the appealpreferred by the petitioner before the 2nd respondent. For Petitioner: Mr. R.Sivaraman For R-4: Mr. C.Mohan, for, M/s. King and Patridge. The petitioner is a Partnership Firm, assessed to IncomeTax on the file of the first respondent / Assistant Commissionerof Income Tax, Non-Corporate Circle - 3. In respect ofassessment year 2012-13, an order of assessment in terms of theprovisions of the Income Tax Act, 1961 (in short ‘Act’) wasinitially passed by the officer accepting the return of incomefiled by the petitioner. The assessment was revised by thePrincipal Commissioner of Income Tax, under Section 263 of theAct, on 21.12.2016. 2. Pursuant to the order under Section 263 of the Act, theAssessing Authority took up the assessment for completion andissued a show cause notice dated 08.12.2017. After hearing thepetitioner, an order of assessment under Section 143 (3) readwith Section 263 of the Act was passed on 30.12.2017, makingvarious additions and adjustments, and primarily denying thebenefit of deduction under Section 80IB (10) of the Act asclaimed by the petitioner. The aforesaid assessment has beencarried in appeal before the first appellate authority by thepetitioner. The assessment has given rise to a demand of a sumof Rs.2,14,09,400/-. 3. The petitioner has filed an application seeking stay ofrecovery of the demand before the first respondent, which is yetpending disposal. Even during the pendency of the aforesaid stayapplication, garnishee notices under Section 226 (3) of the Actappear to have been issued to the third and fourth respondents,the South Indian Bank, Triplicane Branch and State Bank ofIndia, Kilpauk Branch. It is, as against the aforesaid coerciverecovery proceedings that the petitioner is before this Court. 4. Mrs.Hema Muralikrishnan, learned Senior StandingCounsel, who appears for respondents 1 to 3, concurs on the https://hcservices.ecourts.gov.in/hcservices/ position that the Appeal and stay petition are pending disposalbefore the Commissioner of Income tax (Appeals) and theassessing officer. She submits that in the event that the Courtis inclined to consider the prayer of the petitioner for interimstay of recovery, the interests of the Revenue be fullyprotected. 4. Mrs.Hema Muralikrishnan, learned Senior StandingCounsel, who appears for respondents 1 to 3, concurs on the https://hcservices.ecourts.gov.in/hcservices/ position that the Appeal and stay petition are pending disposalbefore the Commissioner of Income tax (Appeals) and theassessing officer. She submits that in the event that the Courtis inclined to consider the prayer of the petitioner for interimstay of recovery, the interests of the Revenue be fullyprotected. 5. In the light of the fact that both the appeal as well asthe stay petition filed by the petitioner are pending before theappellate authority and the assessing officer respectively, I amof the view that the interests of both parties will be protectedby directing the petitioner to remit a sum of Rs.25,00,000/-(Rupees twenty five lakhs only) either by appropriation of theamounts lying to its credit in the South Indian Bank, TriplicaneBranch / the third respondent herein or by way of freshremittance, to the satisfaction of the assessing authority. Uponreceipt of proof of remittance of the sum of Rs.25,00,000/- asdirected aforesaid, the order of attachment of the petitioners’bank account in the South Indian Bank shall stand lifted. 6. The stay application filed by the petitioner, dated29.01.2019, is pending before the first respondent and theofficer is directed to dispose the same within a period of twoweeks from today. No further proceedings for recovery shall betaken for a period of three weeks from today. 7. The writ petition is disposed finally, in the aforesaidterms. Consequently, the connected WMPs are closed. There shallbe no order as to costs. Sd/- Assistant Registrar (CS-V) //True Copy// Srk To Sub Assistant Registrar 1 The Assistant Commissioner of Income Tax Non-Corporate Circle - 3, Room No. 623A, 6th Floor, Wanarpathy Block, 121 Mahatma Gandhi Road, Nungambakkam, Chennai – 600034 2 The Commissioner of Income Tax (Appeals) - 4 121 Mahatma Gandhi Road, Nungambakkam, Chennai – 600034 121 Mahatma Gandhi Road, Nungambakkam, Chennai – 600034 +1cc to Mr. King & Partridge, Advocate, S.R.No. 17539 Writ Petition No.4582 of 2019 KJ(CO) GN(19/03/2019) & W.M.P.Nos.5171, 5174 to 5176 of 2019