Sushiladevi Gadhiya v. The Principal Commissioner Of Income Tax, Central – 1, New

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.07.2019 CORAM THE HON'BLE MR. JUSTICE M. SUNDAR W.P.No.19198 of 2019and W.M.P.No.18633 of 2019 Sushiladevi Gadhiya... Petitioner vs. 1.The Principal Commissioner of Income Tax, Central – 1, New No.46, M.G.Road, Chennai - 600 034. 2.The Commissioner of Income Tax (Appeals) – 19, Chennai - 600 034. 3.The Assistant Commissioner of Income Tax, Central Circle – 3(4), New No.46, M.G.Road, Chennai - 600 034.... Respondents Writ Petition filed under Article 226 of the Constitutionof India praying for issuance of a Writ of CertiorarifiedMandamus, calling for the records relating to the order of thePrincipal Commissioner of Income Tax, Central -1/1[st] respondentin C.No.1571/PCIT-1/17-18 dated 19.06.2019 for the Assessmentyear 2016-17 in the case of the petitioner and quash the sameand direct the 1[st] respondent to grant stay of collection ofdemand till the disposal of appeal by 2[nd] respondent. For Petitioner : Mr.R.Venkata Narayanan for M/s.Subbaraya Aiyar Padmanabhan For Respondents: Mr.A.P.Srinivas Senior Standing Counsel (Income Tax) O R D E R Mr.R.Venkata Narayanan of M/s.Subbaraya Aiyar Padmanabhan(Law Firm), on behalf of the writ petitioner andMr.A.P.Srinivas, learned Standing Counsel on behalf of all thethree official respondents are before this Court. https://hcservices.ecourts.gov.in/hcservices/ 2.Before this Court proceeds further with this order, it isnecessary to make it clear that this order is passed by consent.In other words, this is a consent order. 3.With the aforesaid prefatory note, this Court proceeds toadvert to minimum facts which are imperative for appreciatingthis order. 4.Suffice to say that this matter arises under 'Income TaxAct, 1961' ('IT Act' for brevity). The relevant assessment yearis 2016-2017. An order came to be passed by the AssessingOfficer (3[rd] respondent before this Court) under Section 143(3)of IT Act. This order was carried in appeal by the writpetitioner (assessee) by way of regular statutory appeal to the2[nd] respondent, namely, Commissioner of Income Tax (Appeals)under Section 246-A of IT Act. 5.Pending aforementioned appeal, relying on certaincirculars which are operating in this field, it is submittedthat the writ petitioner on her own volition, paid 20% of thetax demanded. 6.Under the aforesaid circumstances, pending statutoryappeal of the writ petitioner (assessee) before the 2[nd]respondent Appellate Authority, i.e. statutory appeal underSection 246-A of IT Act, writ petitioner approached a superiorofficer being the Principal Commissioner of Income Tax,respondent No.1 before this Court, with a prayer for stay.Though, the nomenclature used is 'stay', a Hon'ble Single Judgeof this Court, in a reported judgment in Cavinkare (P) Ltd. v.Commissioner of Income Tax (Appeals) reported in (2018) 93taxmann.com 14 (Madras) held that it is a reference in popularparlance. Therefore, in the considered opinion of this Court,it is a reference in common parlance. 7.Be that as it may, the aforesaid request of the writpetitioner (assessee) for stay came to be negatived by the 1[st]respondent Principal Commissioner in and by order dated19.06.2019 (hereinafter 'impugned order' for brevity). Instantwrit petition has been filed assailing the impugned order. 8.Mr.A.P.Srinivas, learned Revenue counsel, submitted that,apart from aforesaid order made in Cavinkare case, another orderdated 16.07.2018 made by a Hon'ble Single Judge of this Court inW.P.No.7410 of 2018 [Kalaignar TV Private Limited v. TheAssistant Commissioner of Income Tax and another] is also now invogue. 9.There is no disputation or disagreement before this Courtin the hearing today that the common principle that can be https://hcservices.ecourts.gov.in/hcservices/ 7.Be that as it may, the aforesaid request of the writpetitioner (assessee) for stay came to be negatived by the 1[st]respondent Principal Commissioner in and by order dated19.06.2019 (hereinafter 'impugned order' for brevity). Instantwrit petition has been filed assailing the impugned order. 8.Mr.A.P.Srinivas, learned Revenue counsel, submitted that,apart from aforesaid order made in Cavinkare case, another orderdated 16.07.2018 made by a Hon'ble Single Judge of this Court inW.P.No.7410 of 2018 [Kalaignar TV Private Limited v. TheAssistant Commissioner of Income Tax and another] is also now invogue. 9.There is no disputation or disagreement before this Courtin the hearing today that the common principle that can be https://hcservices.ecourts.gov.in/hcservices/ deduced from the aforesaid Cavinkare as well as Kalaignar TVcases is to the effect that, when Principal Commissioner hasnegatived a request for what is referred to as 'stay' in commonparlance, it will be still open to the Appellate Authority toconsider the prayer for stay notwithstanding the position thatthe Principal Commissioner is higher than the AppellateAuthority in the hierarchy of officers in the Income TaxDepartment. There is no disputation or disagreement with regardto this principle. In Cavinkare case, this Court kept the orderof the Principal Commissioner in abeyance and permitted theassessee to approach the Appellate Authority for stay. InKalaignar TV case, this Court set aside the order of thePrincipal Commissioner and permitted the assessee to approachthe Appellate Authority with a prayer of interim stay. In thelight of Cavinkare, the following consent order is passed : (a) the impugned order, being order dated19.06.2019 bearing reference No.C.1571/PCIT/C-1/17-18 made by the 1[st] respondent, is kept in abeyance.To be noted, this order is kept in abeyance withoutexpressing any view or opinion on merits and it iskept in abeyance for the purpose of enabling thewrit petitioner (assessee) to approach the 2[nd]respondent Appellate Authority with a prayer forstay, to be noted 'stay' in common parlance.(b) Now that the impugned order is kept inabeyance, it is open to the writ petitioner toapproach the 2[nd] respondent Appellate Authority,before whom writ petitioner's statutory appealunder Section 246-A of IT Act is pending, with aprayer for stay. (c) if the writ petitioner (assessee)approaches the 2[nd] respondent Appellate Authoritywith prayer for stay, the 2[nd] respondent AppellateAuthority shall consider such prayer, on its ownmerits by applying all parameters and determinantswhich are necessary to be considered for decidingthe prayer for stay. It is made clear that such aprayer will be considered by the 2[nd] respondentuninfluenced and untrammeled by impugned order,which has been kept in abeyance for this verypurpose. (d) if the writ petitioner approaches the 2[nd]respondent with a prayer for stay, the same shallbe disposed of by the 2[nd] respondent AppellateAuthority as expeditiously as possible, in anyevent within four weeks from the date of filing ofstay petition. directions. No costs. Consequently, connected MiscellaneousPetition is closed. Sd/-Assistant Registrar (CS-)//True Copy//Sub Assistant Registrar mknTo 1.The Principal Commissioner of Income Tax, Central – 1, New No.46, M.G.Road, Chennai - 600 034.2.The Commissioner of Income Tax (Appeals) – 19, Chennai - 600 034.3.The Assistant Commissioner of Income Tax, Central Circle – 3(4), New No.46, M.G.Road, Chennai - 600 034.+1cc to Mr.A.P.Srinivas Advocate, S.R.No.57804 +1cc to M/s.Subbaraya Aiyar Padmanabhan Advocate, S.R.No.58389 BP(CO)CB(25/09/2019) W.P.No.19198 of 2019 andW.M.P.No.18633 of 2019