Shri Durai Murugan Kathir Anand, [ Petitioner ] v. Additional Commissioner Of Income Tax, [ Respondents ] Central Range-1, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRAS ( Special Original Jurisdiction ) Wednesday, the Twenty Ninth day of September Two Thousand Twenty One PRESENT THE HON`BLE MR.JUSTICE M.SUNDAR WMP.No.22287 of 2021IN WP.No.21027 of 2021 SHRI DURAI MURUGAN KATHIR ANAND, [ PETITIONER ]S/O. SHRI DURAI MURUGAN, NO.7, 5TH EAST CROSS STREET,GANDHI NAGAR, VELLORE 632 006 Vs 1 ADDITIONAL COMMISSIONER OF INCOME TAX, [ RESPONDENTS ] CENTRAL RANGE-1, CHENNAI - 600034 2 DEPUTY / ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -1 (3), CHENNAI - 600034 Petition praying that in the circumstances stated therein and inthe affidavit filed therewith the High Court will be pleased to grantan order of Interim Stay of all further proceedings pursuant to theimpugned order in ITBA/AST/F/167/2021-22/1035883599 (1) dated25.09.2021 for the AY 2019-20 passed by the 1st Respondent, (INWMP.NO.22287/2021) pending disposal of the above WP.NO.21027/2021. Order : This petition coming on this day for hearing uponperusing the petition and the affidavit filed in support thereof andupon hearing the arguments of M/S.R.SIVARAMAN, Advocate for thepetitioner and of MR.A.N.R.JAYAPRATAP, Junior Standing Counsel, forthe Respondents, the court made the following order:- Mr.R.Sivaraman, learned counsel on record for petitioner/writpetitioner is before this Virtual Court. 2. Read this in conjunction with and in continuation of separateproceedings made in the main writ petition today (29.09.2021), whichreads as follows: 'In the captioned writ petition an 'order dated 25.09.2021 https://hcservices.ecourts.gov.in/hcservices/ bearing reference DIN & Letter No.ITBA/AST/F/167/2021-22/1035883599(1)' [hereinafter 'impugned order' for thesake of convenience and clarity] made by the firstrespondent has been assailed. 2. Learned counsel for writ petitioner submits thatthe impugned order has been made by the first respondentunder Section 144A of 'The Income-tax Act, 1961 (43 of1961)' [hereinafter 'IT Act' for the sake of brevity] on anapplication by the writ petitioner/assessee. In the lightof certain seizures made in search qua two persons namely,Damodaran and Vimala at Karigiri Road, Pallikuppam RailwayGate, Katpadi, a proposal to tax the same in the hands ofthe writ petitioner qua 'assessment year 2019-2020'[hereinafter 'said AY' for the sake of convenience andclarity] and complexities qua such assessment i.e., natureof the case, writ petitioner made an application underSection 144A of IT Act is learned counsel's say. 3. Adverting to the impugned order, learned counselsubmits that paragraph No.6 of the impugned order which isthe penultimate paragraph (a long paragraph though) learnedcounsel for writ petitioner submitted that this verboseparagraph is a mere reproduction of show cause notice dated08.09.2021bearingreferenceDIN&NoticeNo.ITBA/AST/F/153A(SCN)/2021-22/1035370676(1).Learnedcounsel submits that the first respondent has not appliedhis mind to the contents of the application of the assesseeand has not gone into the nature of the case, amountinvolved or any other reason and has not even opined thatit is neither necessary nor expedient to issue directions(for guidance of AO i.e., 2nd respondent to enable him tocomplete assessment) under Section 144A of IT Act.According to the learned counsel for writ petitioner, thisis a clear infraction of Section 144A of IT Act andtherefore, an infarction qua impugned order i.e., fatal tothe impugned order. 4. This Court notices that the impugned order has beenmade by Additional Commissioner of Income Tax (ADDL.CIT)Central Range 1. The provision under which the impugnedorder has been made is Section 144A of IT Act which makesit clear that the power is vested with the JointCommissioner (atleast on and from 01.10.1998). 4. This Court notices that the impugned order has beenmade by Additional Commissioner of Income Tax (ADDL.CIT)Central Range 1. The provision under which the impugnedorder has been made is Section 144A of IT Act which makesit clear that the power is vested with the JointCommissioner (atleast on and from 01.10.1998). 5. Learned counsel for writ petitioner, adverting tothe writ petitioner's application (which is at page 14 ofthe typed set of papers) submits that the receiptchappa/seal dated 21.09.2021 says the office of O/o.The Additional/Joint Commissioner. Learned counsel for writpetitioner submits that the first respondent may be wearingtwo hats, but this Court notices that the impugned orderhas been made only by the Additional Commissioner of IncomeTax (Central Range 1). 6. Owing to the language in which Section 144A of ITAct is couched as it is the contention of learned counselfor writ petitioner that the ingredients/determinantstherein have not been met qua impugned order and it is nota case where the impugned order says that it is neithernecessary nor expedient to issue directions for guidance ofAO, a prima facie case has been made out for issue ofnotice regarding Admission. 7. Mr.ANR.Jayaprathap, learned Junior standingcounsel, who is before this Virtual Court accepts noticeon behalf of both the respondents. Learned Revenue counselbrings to the notice of this Court that the assessmentorder has since been made/passed by the Assessing Officer(to be noted, second respondent in the writ petition isAssessing Officer i.e., AO). The assessment order is dated27.09.2021 and it has been uploaded yesterday i.e.,28.09.2021. 8. Responding to the above, learned counsel for writpetitioner submits that a writ petition is being preferredassailing the assessment order also and therefore, theassessment order being passed will not take the wind out ofthe sails qua captioned writ petition as the AssessingOfficer stands bound by whatever happens to the impugnedorder when this Court ultimately decides on the impugnedorder. Learned counsel for writ petitioner submits that atthe highest his prayer for interim stay of all furtherproceedings pursuant to the impugned order may have beenovertaken by the assessment order and become infructuousbut the captioned writ petition does not meet this fate andthe impugned order has to be tested. 9. Learned Revenue counsel submitted that he will filea counter affidavit within a fortnight after giving aadvance copy to the counsel for writ petitioner. 10. List under the cause list caption 'NOTICEREGARDING ADMISSION' after Dussehra Vacation. List on20.10.2021.' 3. In the light of the aforementioned proceedings, captioned Writ Miscellaneous Petition is disposed of as closed, without expressingany view on merits of the matter solely on the ground that theassessment order has overtaken the interim prayer. There shall beno order as to Costs. -sd/- 29/09/2021 / TRUE COPY / Sub Assistant Registrar ( Statistics / C.S. ) High Court, Madras - 600 104. TO 1 ADDITIONAL COMMISSIONER OF INCOME TAX, CENTRAL RANGE-1, CHENNAI - 600034 2 DEPUTY / ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -1 (3), CHENNAI - 600034 C.C. to M/S.A.P.SRINIVAS, Advocate SR.NO. 5544/2021 Order in WMP.No.22287 of 2021 Date :29/09/2021 From 26.2.2001 the Registry is issuing certified copies of the Interim Orders in this formatTP (06/10/2021)