The Hon'ble Mr.justice R.suresh Kumar Writ Petition v. >

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.03.2022CORAM: THE HON'BLE MR.JUSTICE R.SURESH KUMARWrit Petition No.4636 of 2022and WMP.No.4758 of 2022Sudharsan ..Petitioner Vs1.The Income Tax Officer Non Corporate Ward 19(5) Room No.612, 6[th] floor, Ayakar Bhavan Annexe block 121, M.G.Road, Nungambakkam Chennai-600 0342.The Income Tax Officer Non Corporate Ward 19(4) No.121, Mahatma Gandhi Road Nungambakkam Chennai-600 0343.The Commissioner of Income Tax (Appeals)-12 No.46, Mahatma Gandhi Road Chennai-600 0344.The Branch Manager Karur Vysya Bank No.22, A, 7[th] Avenue Ashok Nagar Chennai-600 0835.The Branch Manager Karur Vysys Bank D.No.9, Guindy Plot No.777, Munusamy Salai Near Pondicherry Guest House K.K.Nagar Chennai-600 078 ..RespondentsPrayer : Petition filed under Article 226 of the Constitutionof India, praying to issue a writ of certiorari calling forrecords in DIN & Notice No.ITBA/RCV/S/226(3)-1/2021-22/1039758674(1) dated 15.02.2022 on the file of the 2[nd]respondent issued to the 4[th] respondent relating to theassessment year 2017-18 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Hari Radhakrishnan For Respondents : Mr.D.Prabhu Mukunth Arunkumar, Junior Standing Counsel for R1 to R3. ORDER The prayer sought for herein is for a writ of certioraricalling for records in DIN & Notice No.ITBA/RCV/S/226(3)-1/2021-22/1039758674(1) dated 15.02.2022 on the file of the 2[nd]respondent issued to the 4[th] respondent relating to theassessment year 2017-18 and quash the same. 2. In respect of Assessment year 2017-18, there has beenassessment against the petitioner as against which appeal hasbeen filed which is pending. Pursuant to which, the Bankaccount of the petitioner has been attached and a notice tothat effect was issued under Section 226(3) of the Income TaxAct (in short “Act”), on 15.02.2022, which is challenged inthis writ petition. 3. The learned counsel appearing for the petitioner wouldsubmit that pursuant to the impugned notice, the bank accountof the petitioner has been attached, out of which a sum ofRs.34 lakhs has already been recovered by way of appropriationor withdrawal from the bank in favour of the Income TaxDepartment that itself is more than 20% of the total demandfor the assessment year concerned. 4. He would also submit that, subsequently, thepetitioner made an application on 17.02.2022 to the 2[nd]respondent/assessing authority under Section 220(6) of the Actfor consideration of grant of stay for the demand. The saidapplication also has not been considered. Therefore, the pleaof the petitioner counsel is that, let there be a direction tothe 2[nd] respondent to consider the said application dated17.02.2022 and while considering the same, recovery of a sumof Rs.34 lakhs, which is more than 20% of the total demand canbe taken into account and accordingly an order to that effectfor grant of stay can be passed. 5. However Mr.D.Prabhu Mukunth Arunkumar, learned JuniorStanding counsel appearing for the respondents 1 to 3 wouldsubmit that insofar as the plea raised by the learned counselfor the petitioner to consider the application dated17.2.20022 filed under Section 220(6) of the Act is concerned,that would be considered on its own merits and decided withina time frame that may be stipulated by this court. 6. However, with regard to the condition to be imposed,if ultimately, the 2[nd] respondent/assessing authority comeforward to stay the demand that is purely the discretion ofhttps://hcservices.ecourts.gov.in/hcservices/the assessing authority depending upon the case where so many factors would be taken into account including the recovery ofRs.34 lakhs which is already recovered from the bank accountof the petitioner. 7. I have considered the said rival submissions made bythe learned counsel appearing for the parties and have perusedthe materials placed before this court. 6. However, with regard to the condition to be imposed,if ultimately, the 2[nd] respondent/assessing authority comeforward to stay the demand that is purely the discretion ofhttps://hcservices.ecourts.gov.in/hcservices/the assessing authority depending upon the case where so many factors would be taken into account including the recovery ofRs.34 lakhs which is already recovered from the bank accountof the petitioner. 7. I have considered the said rival submissions made bythe learned counsel appearing for the parties and have perusedthe materials placed before this court. 8. Though the notice to bank attachment issued underSection 226(3) of the Act dated 15.02.2022 is under challenge,in view of the aforesaid stand taken by the petitioner,through his counsel as discussed above, this court havingconsidered the said aspect, is inclined to dispose of thiswrit petition with the following orders:- (i) that there shall be a direction to therespondents/assessing authority to consider the applicationdated 17.02.2022 of the petitioner submitted under Section 226(3) of the Act on merits and in accordance with law within aperiod of six weeks from the date of receipt of a copy of thisorder and decide the same. (ii) while considering the said application, theassessing authority/respondents shall take into account therecovery of a sum of Rs.34 lakhs, already been made pursuantto the attachment of the Bank Account of the petitioner andwhether that recovery itself is enough to satisfy the 20%deposit as a pre condition to be normally imposed inconsidering the stay application, can also be taken intoaccount by the respondent/assessing authority while disposingthe said application. (iii) It is needless to mention that, once a decision istaken on the application of the petitioner filed under Section220(6) of the Act, the further course of action with regard tolifting the attachment made against the petitioner in respectof the bank account, would be decided accordingly. 9. With these observations, the writ petition is disposedof. No costs. Consequently, connected Miscellaneous Petitionis closed. Sd/- Assistant Registrar (CO) //True Copy// nvsri Sub Assistant Registrar To 1.The Income Tax Officer Non Corporate Ward 19(5) Room No.612, 6[th] floo, Ayakar Bhavan Annexe block 121, M.G.Road, Nungambakkam Chennai-600 034 Non Corporate Ward 19(5) Room No.612, 6[th] floo, Ayakar Bhavan Annexe block 121, M.G.Road, Nungambakkam Chennai-600 034 https://hcservices.ecourts.gov.in/hcservices/ 2.The Income Tax Officer Non Corporate Ward 19(4) No.121, Mahatma Gandhi Road Nungambakkam Chennai-600 034.3.The Commissioner of Income Tax (Appeals)-12 No.46, Mahatma Gandhi Road Chennai-600 034. W.P.No.4636 of 2022 KV(CO)GN(03/03/2022)