M/S. Surabi Bullion v. The Principal Commissioner Of Income Tax Central -2, Chennai -34

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2017CORAM: THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU W.P. No. 44202 of 2016 M/s. Surabi Bullion,Represented by its Partner Shri K.Vasudevan,405, Surya Complex,Big Bazaar Street,Coimbatore 641 001. ..Petitioner Vs. 1.The Principal Commissioner of Income Tax Central -2, Chennai -34. 2.The Joint Commissioner of Income Tax Central Range, No.63, Race course Road, Coimbatore-641 018. 3.The Assistant Commissioner of Income Tax Central Circle -1, Coimbatore. .. Respondents PRAYER: Writ Petition filed under Article 226 of theConstitution of India praying for issuance of a Writ of Mandamusto direct the 1st Respondent to release a sum ofRs.1,55,88,866/-(Rupees One crore fifty five lakhs eighty eightthousand eight hundred and sixty six only) being theExcess/balance sum after all adjustments lying with the IncomeTax Department[PD account] along with interest at the rate of18% from 31st July 2014 to the Petitioner whose PAN No isABRFS7669H within a time frame as deemed fit by this court. For Petitioner : Mr.P.J.Rishikesh For Respondents : Mr.T.Pramod Kumar Chopda Senior Standing Counsel (IT) O R D E R This writ petition is filed seeking for a mandamus tothe first respondent to release a sum of Rs.1,55,88,866/- beingthe excess/balance sum, after adjustments, lying with the IncomeTax Department (PD) account along with interest at the rate of18% from 31[st] July 2014. 2.The case of the petitioner is as follows:On 24.09.2012, there was a search conducted by theIncome Tax Department under section 132 of the Income Tax Act,1961 and they seized cash of Rs.4,45,00,000/-. Thereafter, thejurisdictional Assessing Officer passed an order of assessmentdated 31.07.2014 and consequence of such assessment, the taxliability payable was determined as Rs.1,52,19,154/- withpenalty under Section 271 AAB determined at Rs.1,36,91,980/-.Thus, the tax and penalty due from the assessee can be adjustedwith cash deposit by way of seizure of Rs.4,45,00,000/- and thebalance sum of Rs.1,55,88,866/- lying with the respondent is tobe returned to the petitioner along with interest as sought forin the writ petition. 3.The first respondent has filed a counter affidavitwherein it is stated that in pursuant to the order ofassessment, the Commissioner passed an order under section 263of the said Act, directing the Assessing Officer to redo theassessment. Such order of the Commissioner under section 263was made on 15.07.2016. It is further stated that thepetitioner, had in fact, participated in such proceedings andtherefore, they are fully aware of the same. Consequent uponthe order passed by the Commissioner under Section 263, theAssessment Officer has passed the fresh order of assessment on13.02.2017, served on the petitioner on 17.02.2017. Therefore,it is contended that the prayer sought for in this writ petitioncannot be considered at present. 4.Learned counsel appearing for the petitioner submittedthat in view of the subsequent developments that had taken placeby passing the order by the Commissioner under Section 263 andconsequent order of assessment passed by the Assessing Officer,the writ petition may be closed by granting liberty to thepetitioner to agitate the matter before the appropriateforum in the manner known to law. Granting such liberty tothe petitioner, this writ petition is closedaccordingly. Needless to say that any interim order passed bythis court during the pendency of the writ petition and anyobservation made therein, which is subject to the result of thewrit petition, do not have any bearing after the disposal of this writ petition, as it is also seen that the observation madein the interim order dated 23.12.2016 was without having theknowledge of the order passed by the Commissioner under Section263. No costs. Sd/- Assistant Registrar this writ petition, as it is also seen that the observation madein the interim order dated 23.12.2016 was without having theknowledge of the order passed by the Commissioner under Section263. No costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrarvri To1.The Principal Commissioner of Income Tax Central -2, Chennai -34.2.The Joint Commissioner of Income Tax Central Range, No.63, Race course Road, Coimbatore-641 018.3.The Assistant Commissioner of Income Tax Central Circle -1, Coimbatore. +1cc to Mr.Rishikesh, Advocate, S.R.No.17429+1cc to Mr.Pramod kumar Chopla, Advocate, S.R.No.17761W.P. No. 44202 of 2016RSK(CO)RS(07/04/2017)