Rep.by Its Executive Director,Mr.ajay Kumar Srivastava v. The Deputy Commissioner Of Income Taxnon Corp.circle 8(1), Room

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.04.2022CORAM : THE HONOURABLE MR.JUSTICE R.SURESH KUMARW.P.Nos.7873, 7876, 7880 & 7884 of 2022andW.M.P.Nos.7872, 7874, 7877, 7879, 7882, 7884, 7886 & 7888 of2022 M/s.Indian Overseas Bank763, Anna SalaiChennai 600 002Rep.by its Managing Directorand CEO Mr.Partha Pratim Sengupta ...Petitioner in W.P.Nos.7873 & 7876/2022 Rep.by its Executive Director,Mr.Ajay Kumar Srivastava ...Petitioner in W.P.Nos.7880 & 7884/2022 -Vs- The Deputy Commissioner of Income TaxNon Corp.Circle 8(1), Room No.507Annexe Building, 121, M.G.RoadChennai 600 034. ...Respondents in all W.Ps. Prayer in W.P.No.7873 of 2022 : Writ Petition under Article 226of the Constitution of India praying for the issuance of a Writof Certiorari calling for the records on the file of therespondent herein in the Impugned Notice u/s.148 of the Actdated 30.03.2021 in DIN and Notice No. ITBA / AST / S / 148 /2020-21 / 1031951987(1) and the consequential order dated28.01.2022 in DIN and Letter No. ITBA / COM / F / 17 / 2021-22 /1039166482(1) rejecting the objections raised by the petitionerfor the Assessment Year 2014-15 and quash the same. Prayer in W.P.No.7876 of 2022 : Writ Petition under Article 226of the Constitution of India praying for the issuance of a Writof Certiorari calling for the records on the file of therespondent herein in the Impugned Notice u/s.148 of the Actdated 29.03.2021 in DIN and Notice No. ITBA / AST / S / 148 /2020-21 / 1031882304(1) and the consequential order dated28.01.2022 in DIN and Letter No. ITBA / COM / F / 17 / 2021-22 /1039166845(1) rejecting the objections raised by the petitionerfor the Assessment Year 2015-16 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.7880 of 2022 : Writ Petition under Article 226of the Constitution of India praying for the issuance of a Writof Certiorari calling for the records on the file of therespondent herein in the Impugned Notice u/s.148 of the Actdated 29.03.2021 in DIN and Notice No. ITBA / AST / S / 148 /2020-21 / 1031882396(1) and the consequential order dated28.01.2022 in DIN and Letter No. ITBA / COM / F / 17 / 2021-22 /1039167351(1) rejecting the objections raised by the petitionerfor the Assessment Year 2016-17 and quash the same. Prayer in W.P.No.7884 of 2022 : Writ Petition under Article 226of the Constitution of India praying for the issuance of a Writof Certiorari calling for the records on the file of therespondent herein in the Impugned Notice u/s.148 of the Actdated 29.03.2021 in DIN and Notice No. ITBA / AST / S / 148 /2020-21 / 1031882422(1) and the consequential order dated28.01.2022 in DIN and Letter No. ITBA / COM / F / 17 / 2021-22 /1039167701(1) rejecting the objections raised by the petitionerfor the Assessment Year 2017-18 and quash the same. Since the issue raised in all these writ petitions is oneand the same, with the consent of the learned counsel for thepetitioner as well as the learned Government Advocate appearingfor the respondent, these writ petitions were taken up together,heard and disposed of by this common order. 2. The petitioner is an assessee under the respondents. Inrespect of Assessment Years 2014-15, 2015-16, 2016-17 and 2017-18, in order to reopen the assessment under Section 147 of theIncome Tax Act, 1961 (In short 'the Act'), they issued a noticeunder Section 148 of the Act. Thereafter, after filing returnthe assessee sought for the reasons, which were supplied by theRevenue and against those reasons, objections have been raisedby the petitioner. Thereafter, those objections having beenconsidered, was rejected through the impugned orders, which areimpugned herein in these writ petitions along with the noticeunder Section 148 of the Act. 2. The petitioner is an assessee under the respondents. Inrespect of Assessment Years 2014-15, 2015-16, 2016-17 and 2017-18, in order to reopen the assessment under Section 147 of theIncome Tax Act, 1961 (In short 'the Act'), they issued a noticeunder Section 148 of the Act. Thereafter, after filing returnthe assessee sought for the reasons, which were supplied by theRevenue and against those reasons, objections have been raisedby the petitioner. Thereafter, those objections having beenconsidered, was rejected through the impugned orders, which areimpugned herein in these writ petitions along with the noticeunder Section 148 of the Act. 3. When these writ petitions are taken up for hearing, atthe admission stage itself it is brought to the notice by thepetitioner's counsel as well as the learned Standing Counsel forhttps://hcservices.ecourts.gov.in/hcservices/ the Revenue that in these matters, assessment orders have beenpassed. The learned counsel for the petitioner would canvassthe point that, even if the assessee is driven to go before theappellate authority against the assessment orders, the veryreopening under Section 147, according to the learned counselfor the petitioner, is impermissible as the assessing authoritydoes not have the jurisdiction, therefore that point cannot becanvassed before the appellate authority. Moreover, assumingthat those points also can be canvassed before the appellateauthority while filing the appeal against the present assessmentorders, during the pendency of the appeals, if petition for stayis filed and if the petitioner seeks for stay, unmindful of thehigh pitch claim in each of the assessment years, the appellateauthority may mechanically impose 20% of the demand or tax dueand that would greatly prejudice the interest of the petitionerassessee. Therefore, on that ground still the petitioner wantsto assail the impugned orders ie., the rejection orders as wellas the Section 148 orders in these writ petitions. 4.However, Mr.Prabhu Mukunth Arunkumar, learned StandingCounsel appearing for the respondents would contend that, oncethe assessment order has been passed and it is challenged byfiling appeal, whether if stay petition is filed or not, it isfor the appellate authority to take up the matter on merits andin accordance with law. Therefore, that cannot be a reason forchallenging the Section 148 notice and the rejection orders atthis juncture, without challenging the assessment orders beforethe appellate authority. 5. I have considered the submissions made by the learnedcounsel for either side and have perused the materialsavailable on record. 6. Insofar as the apprehension raised by the learnedcounsel for the petitioner that, in case appeal is filed alongwith stay petition, that issue can be taken care of by theappellate authority whether if any grounds are urged by thepetitioner assessee that there are high pitch claim in each ofthe assessment years which is covered under the assessmentorders, and in respect of which, if any stay is asked for byfiling a stay petition, the same can be objectively consideredand decided on the merits of the case, which is going to beprojected in the main appeal also and accordingly instead ofpassing a regular order of imposing the condition of payment of20% of the demand, a lesser amount also can be considered to beimposed by the appellate authority depending upon the merits ofthe case. 7. Therefore, it is ultimately for the appellate authorityto decide the stay petition while deciding the stay petition,however, the above observation made by this Court may be bornein mind by the appellate authority. https://hcservices.ecourts.gov.in/hcservices/ 7. Therefore, it is ultimately for the appellate authorityto decide the stay petition while deciding the stay petition,however, the above observation made by this Court may be bornein mind by the appellate authority. https://hcservices.ecourts.gov.in/hcservices/ 8. With the above observations, these writ petitions aredismissed relegating the petitioner to go before the appellateauthority challenging the assessment order in respect of eachassessment year along with stay petition, if any. No costs.Consequently, connected miscellaneous petitions are alsodismissed. //True Copy// Sd/-Assistant Registrar (CCC) KST Sub Assistant Registrar To The Deputy Commissioner of Income Tax, Non Corp.Circle 8(1), Room No.507Annexe Building, 121, M.G.Road, Chennai 600 034. +1cc to M/s.Hema Muralikrishnan, Advocate SR. No. 22498+1cc to M/s.Subbaraya Aiyar Padmanabhan, Advocate SR. No. 22619 W.P.Nos.7873,7876, 7880 & 7884 of 2022 SM (CO)PR (19/05/2022)