Suneel Hirachand Shah v. The Income Tax Officer, Non Corporate Circle 6(1), Ii Floor, Room

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.01.2020CORAM : THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN andTHE HONOURABLE MR.JUSTICE P.VELMURUGANT.C.A.No.11 of 2020and C.M.P.No.368 of 2020 Suneel Hirachand ShahNo.178, Old No.88,NSC Bose Road,Sowcarpet, Chennai 600 079. ... AppellantVs The Income Tax Officer,Non Corporate Circle 6(1),II Floor, Room No.223,BSNL Complex, Tower 1,Greams Road, Anna Salai,Chennai 600 006.... Respondent PRAYER : Appeal under Section 260A of Income Tax Act, 1961against the order of the Income Tax Appellate Tribunal, “C”Bench,ChennaiinS.P.No.319/CHNY/2019inI.T.A.No.3197/CHNY/2019 dated 09.12.2019 against the Appellateorder passed by the Commissioner of Income Tax(A)-5 Chennai,dated 31/10/2019 in ITA.No.210/CIT(A0-5/2018-19, and against the Assistant Commissioner of Income Tax, Non-Corporate Circle-6(1) Chennai-600 006 dated 28/12/201813/11/2018 made in PAN/GIR.No. . For Appellant :Mr.R.Sandeep Bagmar For Respondent:Mr.T.Ravi KumarSenior standing counsel 1/4 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (Judgment of the Court was delivered by N.KIRUBAKARAN, J) The Appeal has been preferred against the dismissal of staypetition filed by the assessee/appellant in the ITA filed by theAppellant agianst the order of the Appellate Commissionerconfirming the addition made by the Assessment Officer. 2.The case of the appellant is that he has purchased sharesin Twenty First Century India Limited between October 2004 andNovember 2004 and he has sold the shares only in 2010 and he isentitled for exemption u/s.10(38) of the Income Tax Act, 1961.The Assessment Officer disallowed the claim and the same wasconfirmed by the Appellate Commissioner. In the Appeal, theTribunal found that there is no prima facie case in favour ofthe appellant, on the premise that the incriminating materials,based on the report provided by SEBI and Director of Investment,Kolkatta prove that these transactions are bogus. 3. The Tax Case Appeal is admitted on the followingsubstantial questions of law: (i)Whether the Tribunal was correct in dismissing the requestfor stay of demand without considering the complete factsand circumstances of the case of the Appellant?(ii)Whether the Tribunal was correct in dismissing the requestfor stay of demand when the Appellant has strong primafacie case on merits, the assessment order being withoutjurisdiction and in complete violation of principles ofnatural justice? (iii)Whether in the interest of justice, equity and fairnessthe Appellant should be granted stay of balance tax demandwhen it has made a prima facie case on merits, the balanceof convenience is in faovur of the Appellant and unduehardship will be caused to the Appellant if further taxdemand is to be paid? 4.Heard Mr.R.Sandeep Bagmar, learned counsel appearing onbehalf of the appellant and Mr.T.Ravikumar, learned SeniorStanding counsel appearing on behalf of the respondent. 5.Though there are arguments and rival arguments with regardto genuineness of transactions, this Court is not inclined to gointo the issues at this stage. The only question to be decidedis as to whether the Tribunal is right in dismissing the staypetition. The learned counsel appearing for the appellant hasproduced a computation table which shows that the tax demanded 2/4 is Rs.34,12,174/- and interest on tax is Rs.27,86,838/- and thetotal tax and interest is Rs.61,99,012/-, whereas he has paidRs.15,71,293/-. 4.Heard Mr.R.Sandeep Bagmar, learned counsel appearing onbehalf of the appellant and Mr.T.Ravikumar, learned SeniorStanding counsel appearing on behalf of the respondent. 5.Though there are arguments and rival arguments with regardto genuineness of transactions, this Court is not inclined to gointo the issues at this stage. The only question to be decidedis as to whether the Tribunal is right in dismissing the staypetition. The learned counsel appearing for the appellant hasproduced a computation table which shows that the tax demanded 2/4 is Rs.34,12,174/- and interest on tax is Rs.27,86,838/- and thetotal tax and interest is Rs.61,99,012/-, whereas he has paidRs.15,71,293/-. 6.Though the Tribunal found that there is no prima faciecase in view of the incriminating documents, considering thefact that the appellant had already deposited a sum ofRs.15,71,293/-, out of demand of Rs.61,99,012/-, the Interest ofJustice will be complied with by directing the appellant todeposit a further sum of Rs.15,00,000/- in three equalinstallments, each installments should be paid within 15 days ofevery month. On such payment, the dismissal order passed by theTribunal in the stay petition is set aside and there shall be anorder of interim stay till the disposal of the Appeal before theTribunal. The question of law is answered in the above terms.It is open to the Tribunal to get along with the matter anddispose of the matter at the earliest, in accordance with law. 7.Accordingly, this Appeal is disposed of. No costs.Consequently, connected Miscellaneous Petition is also closed. Sd/- Asst.Registrar (CS V ) /true copy/Sub Asst. Registrar To 1.The Income Tax Officer,Non Corporate Circle 6(1), II Floor, Room No.223,BSNL Complex, Tower 1, Greams Road, Anna Salai, Chennai 600 006. 2.Income Tax Appellate Tribunal 'C' Bench,Chennai. 3.The Commissioner of Income Tax(A)-5Chennai 4.The Assistant Commissioner of Income Tax,Non-Corporate Circle-6(1)Chennai-6 3/4 +1 cc to Mr.Sandeep Bagmar Advocate sr3628 +1 cc to Mr.T.Ravikumar Advocate sr3630 ask26/02/202 4/4