Sri. B.v. Sampath v. The Commissioner Of Income Tax & Ors

IN THE HIGH COURT OF KARNATAKA, BENGALURU. DATED THIS THE O0 DAY OF OCTOBER 2017 BEFORE THE HON'BLE Dr. JUSTICE VINEET KOTHARI WRIT PETITION Nos.40842%872 /2017 (%IT) BETWEEN: SRI. B.V. SAMPATH|»/O VALAPPAAGED ABOUT 68 YBARS|No.16, 23[‘T]CROSS, GEETHA COLONYJAYANAGAR 4 BLOCK,BBENGALURU-5600 19 _ PRTITIONBR (BY SRI. ANAND KUMAR M, ADV..,) AND: 1.THE COMMISSIONBR OF INCOMB TAX(APPEALS-II), BENGALURU-560001.(APPEALS-II), BENGALURU-560001. 2.THERE DEPUTLY COMMISSIONER OF INCOME TCENTRAL CIRCLE-2(2), BENGALURU-560001.CENTRAL CIRCLE-2(2), BENGALURU-560001. 3.THE TAX RECOVERY OFFICER (CENTRAL)) FLOOR, CENTRAL REVENUE BUILDING) FLOOR, CENTRAL REVENUE BUILDING QUEEN’S ROAD, BANGALORE-560001.. .. RESPONDENTS (BY SRI. JEEVAN J. NEERALGI, ADV.,) THESE W.Ps. ARE FILED UNDER ARTICLE 227 OF THE!CONSTITUTION OF INDIA PRAYING TO QUASH THE TWO.NOTICKS DATED 29.8.2017 ISSUBD BY R-3 AT ANNEBX-JU & RESPECTIVELY & ETC., THESE W.Ps. COMING ON FOR PRELIMINARY HBARING|THIS DAY, THE COURT MADE THE FOLLOWING:-| 2/7 ORDER Mr. Anand Kumar M,Adv. tor Petitioner Mr. Jeevan J. Neeralgi,Adv. for Respondents 1. The petitioner-Mr.B.V.Sampath-assessee under the Income Tax Act, has approached this Court with the following prayers:- “(Y Issue a writ of certiorari or any otherappropriate writ or order to quash the two noticesdatedIQ §YO17inFlNo.81/ BVS/TRO/ BNG/ 2017-18 issued by th[ra]respondentproducedatAnnexures-d|0%Krespectively. (wu) Issue any other writ or direction as this|Hon'ble Court may deem fit in the facts andcircumstances of the case”. 2. The matter was remitted back by the Income Tax Appellate Tribunal, Bangalore Bench ‘B’, by the order.Annexure-Adated16.06.2017forthe Assessment Year 2008-09, directing the 1[-6]AppellateAuthority namely, the Commissioner of Income Tax(Appeals), 11, Bangalore, to decide the stay application of the petitioner pending before him with the followingobservations:-. G5.3.3. Respectfully following the aforesaid|decision of the Hon'ble Karnataka High Court inthe case ofCIT Vs K. Satish Kumar Singhrestore.theimpugnedappealfor|theassessment year2008-09to the file of the ldCIT(A) for consideration and adjudication on|merits thereof, only after examination andvertfication of the assessee’s claim that hehas paid the taxes due on admitted/returnedincome' for theimpugned assessmentaS perthe claim made and details filed before us inappellate proceedings. If after examinationand verification by the learned CIT{(A), it is foundthat the claims made in the details filed by theassessee thattaxes due on returned income|for the impugned assessment years is in|order,only then the impugned appeal is to be|admitted for consideration and adjudication onmerits. For the purpose of section 249(4)(a) of theAct, what is to be seen ts that whether taxes due|on admitted income have been paid by the.assesse and this purpose,taxes would notinclude interest charged u/s 234A, 231B &234C of the Act. It is ordered accordingly. Date of Order 09-10-2017 W.P.Nos.40842-872/2017 Sri. B.V. Sampath Vs. The Commissioner of Income Tax & Ors. 4/7 5.|In the result, the assessee’s appealfor assessment years 2008-09 is treated asallowed for statistical purposes. Order pronounced in the open Court on 16[th] June 2O1 7. Sd/ - (LALIET KUMAR) |JUDICIAL MEMBER (JASON P BOAZ)ACCOUNTANT MEMBER” 3. Thereafter, it seems, the learned Commissionerof Income Tax (Appeals), has passed the interim orderdeciding the stay application of the petitioner-assesseesranting him the partial relief with certain conditions.such an order was passed by the learned Commissionerof Income Tax (Appeals)-11, Bangalore, on08.09.2017The relevant extract of the order is quoted below forready reference:- “Considering that the assessee was in|default, of even the self assessment Tax and hadto be recovered by the department and thepresent appeals pending are in pursuance ofITATremitting the matter, the assessee is granted stay 5/7 Order pronounced in the open Court on 16[th] June 2O1 7. Sd/ - (LALIET KUMAR) |JUDICIAL MEMBER (JASON P BOAZ)ACCOUNTANT MEMBER” 3. Thereafter, it seems, the learned Commissionerof Income Tax (Appeals), has passed the interim orderdeciding the stay application of the petitioner-assesseesranting him the partial relief with certain conditions.such an order was passed by the learned Commissionerof Income Tax (Appeals)-11, Bangalore, on08.09.2017The relevant extract of the order is quoted below forready reference:- “Considering that the assessee was in|default, of even the self assessment Tax and hadto be recovered by the department and thepresent appeals pending are in pursuance ofITATremitting the matter, the assessee is granted stay 5/7 OnlfurtherrecoverysubjectTo|followingconditions. 1,The appellant shall ensure that Rent dues|till date is made over to the TRO on or'till date is made over to the TRO on or' before22.09.2017. D2The appellant pays Rs,1O lakhs permonth on or before 10[th]of every monthmonth on or before 10[th]of every month commencingfrom 10[th]Oct. DO] 7. 3.Any refund due to the assessee will beadjusted u/s 245 of the IT Act.adjusted u/s 245 of the IT Act. 4.Provisions of section 220(2) shall apply. 5,Non-Compliance to any of the terms shallresultsinautomaticcancellationofthis/Installment scheme.resultsinautomaticcancellationofthis/Installment scheme. 7 |In the result, the appellant shalladhere to the terms & conditions of the TaxRecovery Officer mentioned above. (PRADEEP KUMAR)COMMISSIONER OF INCOME TAX(APPEALS)-11, BANGALORE’ 4. In view of the aforesaid, the submission of the learned counsel for the petitioner that the Tax RecoveryOfficer is taking coercive action against the petitioner Date of Order 09-10-2017 W.P.Nos.40842-872/2017 Sri. B.V. Sampath Vs. The Commissioner of Income Tax & Ors. 6/7 cannot be believed. If the petitioner-assessee has givenan Undertaking to comply with the conditions imposedby the learned Commissioner of Income Tax (Appeals)-_11, Bangalore, in the said order dated 08.09.2017 andactually is complying with the same, the Tax RecoveryOfficer being the lower Authority cannot be expected togo beyond the order passed by the higher AppellateAuthority namely, the Commissioner of Income Tax(Appeals)-11, Bangalore. 5 |IT thepetitioner-assesseewantsanymodification or clarification ot the said interim order|passed on the stay application of the petitioner-assesseeby the learned Commissioner of Income Tax (Appeals)-11, Bangalore, it is for the petitioner-assessee toapproach the said concerned Appellate Authority only. | 6. The same does not leave any scope for furtherinterference in the matter at this stage by this Court. Date of Order 09-10-2017 W.P.Nos.40842-872/2017 Sri. B.V. Sampath Vs. The Commissioner of Income Tax & Ors. 7/7 7/7. The petitions are accordingly disposed of wit the aforesaid liberty and direction to the petitioner. No costs. Srl. sd/-| JUDGE