The Honourable Mr.justice R.suresh Kumar v. The Assistant Commissioner Of Income Tax Non-Corporate Circle-2 Coimbatore. Non-Corporate Circle-2 Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM : THE HONOURABLE MR.JUSTICE R.SURESH KUMAR Writ Petition No.3741 of 2022and W.M.P.No.3888 of 2022 Tara JewelleryRepresented by its Partner Paras K Soni61, West Bashyakaralu Road, R.S.PuramCoimbatore – 641 002.….Petitioner -Vs- 1.The Assistant Commissioner of Income Tax Non-Corporate Circle-2 Coimbatore. Non-Corporate Circle-2 Coimbatore. 2.Principal Commissioner of Income Tax Race Course Road, Coimbatore-63. Race Course Road, Coimbatore-63. 3.The Commissioner of Income Tax (Appeal) Coimbatore. …. Respondents Coimbatore. …. Respondents Prayer : Writ Petition under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Mandamus directingthe 2[nd]respondent to consider and pass orders on therepresentation dated 29.12.2021 submitted by the petitionerrequesting to grant stay the collection of tax for the AY2017/2018 till the disposal of Appeal pending before the 3[rd]respondent. For Petitioner : Mr.Thanjai P.N.Chezhian For Respondent : Mr.A.P.Srinivas Senior Standing Counsel The prayer sought for herein is for a Writ of Mandamusdirecting the 2[nd] respondent to consider and pass orders on therepresentation dated 29.12.2021 submitted by the petitionerrequesting to grant stay the collection of tax for the AY 2017-2018 till the disposal of Appeal pending before the 3[rd]respondent. 2. In respect of Assessment Year 2017-18, there was anassessment order against the petitioner, under which the tax duewas Rs.5,19,00,000/-. As against the said assessment order, thepetitioner preferred an appeal before the Commissioner of IncomeTax (Appeals) and the said appeal is said to be pending tilldate. 3. During the pendency of the appeal, the petitioner made anapplication for stay of the demand under Section 220(6) of theIncome Tax Act, 1961 (In short, 'the Act'). Since that wasrejected, against which the petitioner made a further appeal /representation before the Principal Commissioner of Income Tax,which was also rejected, as against which the petitioner hasfiled a writ petition, where a remand order has been passed bythis Court, pursuant to which, considering the said applicationsubmitted by the petitioner for Stay, the Principal Commissionerof Income Tax, Coimbatore, by his proceedings dated 25.09.2020passed the following order. “ 8.0. Considering all the facts and the incomesdeclared by the assessee and in the absence ofinclination to pay any disputed tax, I am of theconsidered view that the demand can be stayedsubject to payment of 20% of the disputed taxes asper Circular No.1914 of the Central Board of DirectTaxes till the disposal of appeal by Commissionerof Income Tax (Appeals). Though the assessee hasnot asked, considering the present situation this20% is directed to be paid either in one lump sumor in 18 monthly equal installments starting from15[th] day from the date of receipt of this order. Ifthis is not complied with, the installment facilityand the stay would stand withdrawn automaticallywithout any further notice and the entire demandshall be recovered.” “ 8.0. Considering all the facts and the incomesdeclared by the assessee and in the absence ofinclination to pay any disputed tax, I am of theconsidered view that the demand can be stayedsubject to payment of 20% of the disputed taxes asper Circular No.1914 of the Central Board of DirectTaxes till the disposal of appeal by Commissionerof Income Tax (Appeals). Though the assessee hasnot asked, considering the present situation this20% is directed to be paid either in one lump sumor in 18 monthly equal installments starting from15[th] day from the date of receipt of this order. Ifthis is not complied with, the installment facilityand the stay would stand withdrawn automaticallywithout any further notice and the entire demandshall be recovered.” 4. As against the said order also, though the petitionerfiled a writ petition, it was subsequently withdrawn.Therefore, the order passed by the Principal Commissioner dated25.09.2020 has become final insofar as the conditional order isconcerned. However, according to the learned counsel for thepetitioner, due to COVID-19 situation, he could not comply withthe said order. On 27.11.2020, the petitioner made an attemptby filing an application by paying a sum of Rs.20,00,000/- aloneto give further time. Thereafter, through a garnishee order,the Revenue had recovered a sum of Rs.23,00,000/- from theaccount of the petitioner and thereafter Rs.2,00,000/- and oddalso had been recovered. Therefore, altogether so farRs.46,00,000/- has been recovered from the petitioner out ofRs.1,03,00,000/- being 20% of the total demand ofRs.5,19,00,000/-. 5. At this juncture, now the present writ petition has beenmoved seeking a Writ of Mandamus as prayed for. Reiterating theaforesaid prayer, the learned counsel for the petitioner seeksthe indulgence of this Court that, if some breathing time isgiven, the remaining amount of Rs.47,00,000/- of the totalRs.1.03 Crores being 20% of the total demand would be paid bythe petitioner/assessee. 6. However, Mr.A.P.Srinivas, learned Senior Standing Counselwould submit that, already long rope has been given and by orderdated 25.09.2020, the Revenue has given easy installments ie.,18 installments to pay 20% of the demand and that chance has notbeen utilized and subsequently he paid only Rs.20,00,000/- being10%. Thereafter, a sum of Rs.25 to Rs.26 lakhs were recoveredand therefore, even now only 10% of the demand has beenrecovered from the petitioner and remaining 10% is still to bepaid by the petitioner. Hence, at this juncture, the petitionercannot seek any indulgence of this Court by seeking a Writ ofMandamus with the aforesaid prayer and seeks the dismissal ofthis writ petition. 7. I have considered the submissions made by the learnedcounsel for the petitioner and the learned Senior StandingCounsel appearing for the Revenue and have considered thematerials placed on record. 8. Now the issue is, whether some more breathing time can begiven to the petitioner / assessee to pay the remaining amountie., Rs.47,00,000/- out of Rs.1.03 Crores being 20% of the totalamount, which in fact was directed to be paid by way of 18installments by the order of the Principal Commissioner by orderdated 25.09.2020 while granting the order of stay of the demand. 9. Though the said order was passed in September 2020, tilldate only 50% of the 20% conditional order has been paid.Thereby, only 10% of the total demand alone has been paid. Theremaining 10% necessarily has to be paid, without which thepetitioner cannot seek the benefit of stay pending appeal beforethe Commissioner of Income Tax (Appeals). 8. Now the issue is, whether some more breathing time can begiven to the petitioner / assessee to pay the remaining amountie., Rs.47,00,000/- out of Rs.1.03 Crores being 20% of the totalamount, which in fact was directed to be paid by way of 18installments by the order of the Principal Commissioner by orderdated 25.09.2020 while granting the order of stay of the demand. 9. Though the said order was passed in September 2020, tilldate only 50% of the 20% conditional order has been paid.Thereby, only 10% of the total demand alone has been paid. Theremaining 10% necessarily has to be paid, without which thepetitioner cannot seek the benefit of stay pending appeal beforethe Commissioner of Income Tax (Appeals). 10. Therefore, in order to balance the interest of bothsides and taking into account the indulgence already shown bythe Principal Commissioner of Income Tax by his order dated25.09.2020, where he has already given 18 installments, where,though belatedly, the petitioner had paid Rs.46,00,000/- whichis being 10% of the 50% conditional order, this Court isinclined to dispose of this writ petition by passing thefollowing order. ●That the petitioner shall pay the remaining amountof Rs.47,00,000/- being 10% of the total demand intwo installments. The first installment, ie., 50%of Rs.47,00,000/- shall be paid by thepetitioner/assessee within 30 (thirty) days fromtoday and the remaining 50% shall be paid in thenext 30 days. ●It is made clear that, if the petitioner/assesseefails to comply with this condition, the staygranted by the Principal Commissioner vide hisproceedingsdated25.09.2020shallstandautomatically vacated and out of which thepetitioner cannot seek any shelter further. ●Once the condition imposed above is complied withby the petitioner in time, the stay granted by thePrincipal Commissioner of Income Tax by proceedingsdated 25.09.2020 shall continue till the disposalof the appeal filed and is pending before theappellate authority against the original assessmentorder. ●It is further made clear that, if the order passedby this Court is complied with in full, therespondents shall withdraw the garnishee orderalready issued in this regard by the banker of thepetitioner. With the above observations and directions, this writpetition is disposed of by remitting the matter to the assessingauthority to do the needful as indicated above. No costs.Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CS-VII) //True Copy// KST To 1.The Assistant Commissioner of Income Tax Non-Corporate Circle-2 Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2.Principal Commissioner of Income Tax Race Course Road, Coimbatore-63. 3.The Commissioner of Income Tax (Appeal) Coimbatore. +1cc to Mr.A.P.Srinivas, Advocate, S.R.No.11463+1cc to Mr.K.M.Balaji, Advocate, S.R.No.11749 W.P.No. 3741 of 2022 KK(CO)SB(23/03/2022)