Principal Commissioner Of Income Tax, Bathinda v. M/S Hpcl Mittal Energy Ltd. And Another

CWP No.10705 of 2015 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. CWP No.10705 of 2015Date of decision : 26.07.2018 Principal Commissioner of Income Tax, Bathinda ........ Petitioner VS M/s HPCL Mittal Energy Ltd. and another ...... Respondents 2. CWP No.10804 of 2015........ Petitioners Principal Commissioner of Income Tax, Bathinda VS M/s HPCL Mittal Pipelines Ltd. and another 3. ...... RespondentsCWP No.14318 of 2015 Principal Commissioner of Income Tax, Bathinda ........ Petitioners VS M/s HPCL Mittal Pipelines Ltd. and another ...... Respondents CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTALHON'BLE MR. JUSTICE AVNEESH JHINGAN Present:-Mr.Rohit Jain, Advocatefor the petitioners.Mr. Dinesh Goyal, Senior Standing Counselfor the Revenue.*** AVNEESH JHINGAN, J. This order shall dispose of three writ petitions bearing CWPNos. 10705, 10804 and 14318 of 2015. The assessment years involved are 2008-09 in CWP Nos.10705 and 10804 of 2015. In CWP No.14318 of2015, assessment year is 2009-10. As the facts are common and issueinvolved is same, these are being disposed of by a common order. For the sake of convenience, the facts are being taken up fromCWP No.10705 of 2015. The Principal Commissioner of Income Tax filed the writpetition seeking quashing of order dated 30.09.2014 (Annexure P-6) passedby Income Tax Appellate Tribunal, Amritsar (for short, 'ITAT') grantingstay of penalty during the pendency of the appeal. In the writ petition, M/s HPCL Mittal Energy Ltd. and IncomeTax Appellate Tribunal, Amritsar Bench, Amritsar have been arrayed asrespondents No.1 and 2 respectively. The assessee filed the original return for the assessment year2008-09 on 30.09.2008 declaring income of `23,61,30,520/-. The returnwas revised on 09.09.2009 declaring total income as Nil. Current year lossof business was declared claiming a refund of `8,15,93,109/-. Anotherrevised return was filed on 30.09.2009, the refund claim remained the same.A notice under Section 143(2) of Income Tax Act, 1961 (for short, 'the Act')was issued on 13.03.2009. Assessment was framed vide order dated30.11.2010 under Section 143(3) of the Act and penalty proceedings underSection 271 (1)(c) of the Act for concealment of Income were initiatedseparately. Being aggrieved of the assessment order, the assessee filed anappeal before the Commissioner of Income Tax (Appeals). The appeal wasdismissed vide order dated 28.03.2013. Further, an appeal was filed beforeITAT, the same was dismissed vide order dated 31.12.2013. On 30.11.2010, a notice for penalty under Section 271(1)(c) ofthe Act was issued. The assessee filed a written reply on 22.12.2010, andultimately, penalty was imposed vide order dated 18.02.2014. The assessee filed an appeal, which was dismissed byCommissioner of Income Tax (Appeals) on 02.07.2014. Feeling aggrievedfurther, appeal was filed before ITAT along with stay application. TheTribunal vide order dated 30.09.2014 granted stay. The relevant portion ofthe order is reproduced below:- “In view of the above discussion, theassessee, has, prima facie, a good case on thelegal issue as well on merit in their favour, due towhich, the balance of convenience lies in theirfavour, and also, the assessee would subjected toirreparable loss, if in the facts and circumstancesof the case, as considered above, the stay is notgranted to the assessee. Apropos the attachment order passed by theAO and recovery made, it is patent on record thatvide letter dated 17.09.2014, the AO stoodspecifically informed of the pendency of theappeals as well as the stay applications before theTribunal, still he went ahead and illegallyattached the bank accounts and madeunsustainable recovery. Accordingly, theattachment orders are hereby lifted and the AO isdirected to refund the amount of the assesseeimmediately. Apropos the attachment order passed by theAO and recovery made, it is patent on record thatvide letter dated 17.09.2014, the AO stoodspecifically informed of the pendency of theappeals as well as the stay applications before theTribunal, still he went ahead and illegallyattached the bank accounts and madeunsustainable recovery. Accordingly, theattachment orders are hereby lifted and the AO isdirected to refund the amount of the assesseeimmediately. Since the applications/letters in this regardhave been filed before us today, no separate orderin this regard needs to be issued. Orderedaccordingly. In the result, all the three Stay Applications filed by the assessees are allowed. The connectedmain appeals are directed to be fixed for hearingon merit, for 17.11.2014.” Not satisfied with the said order, the present writ petition was filed. During the pendency of the writ petitions, the appeals againstthe penalty order passed under Section 271(1)(c) of the Act was heard bythe Tribunal on 26.08.2015. There was a difference of opinion between themembers and the matter was referred to the third member. The thirdmember vide order dated 07.05.2018 rendered his opinion. The Tribunalvide order dated 20.06.2018 as per the majority opinion allowed the appealsof the assessee and quashed the penalty. In other words, appeals against the penalty order has beendecided on merits and the levy of penalty has been set aside. The presentwrit petition has been rendered infructuous as the challenge was onlyagainst the interim order passed by Tribunal granting stay. The writ petitions are, therefore, disposed of as infructuous. (AJAY KUMAR MITTAL) JUDGE 26.07.2018anju (AVNEESH JHINGAN) JUDGE Whether speaking/reasoned?Whether reportable? Yes/No Yes/No