The State Bank Of India v. The Deputy Commissioner Of Income-Tax (Tds) And Another ..…

IN THE HIGH COURT OF UTTARAKHANDAT NAINITALWrit Petition No. 487 of 2013 (M/S) The State Bank of India ….. Petitioner Versus The Deputy Commissioner of Income-tax (TDS) and another ..… ..… Respondents Mr. Pulak Raj Mullick, Advocate for the petitioner. Mr. Hari Mohan Bhatia, Advocate for the respondents. Hon’ble Kalyan Jyoti Sengupta, J. Learned counsel for the respondents submits that he will not file any counter affidavit. He urges to this Court to decide the matter finally. This writ petition is directed against the action of the respondents whereby the respondents have asked the petitioner to pay the entire assessed amount amounting to rupees more than 243 crores in aggregate in respect of three several assessment years. It is submitted by the learned counsel for the petitioner that the petitioner has right to prefer appeal against the order of assessment within the period of limitation which is vested and statutory right, and by this action of the respondents, his statutory right is sought to be taken away. According to him, recovery proceedings can be initiated when the money has become due after expiry of period of limitation. The period of limitation of 30 days to prefer the appeal is not over as yet. Therefore, the department must wait till the expiry of period of limitation. Learned counsel for the respondents says that the moment assessment is over, respondents are free to initiate recovery proceedings in any manner and method. The petitioner itself approached the assessing officer for granting time, and such time has been granted for a period of seven days. Therefore, the petitioner cannot have any grievance and complaint when the time has been given. After hearing the learned counsel for the parties, I do not find any provision in the Income Tax Act that the assessee can approach Assessing Officer after assessment is over for granting stay. The remedy is by way of appeal and with necessary application for interim relief and interim relief can be granted by the appellate authority. It seems to me that the respondents department has initiated recovery proceedings asking the petitioner to pay the amount after assessment is over. I think this is not the way to recover the amount. Here, I find the recovery proceedings has not been initiated in accordance with the procedure laid down in the Act and Rule framed therein. It appears by the impugned notice and order a threat has been given to recover the amount. I am of the view any action taken by the department without due and proper recovery proceedings tantamount to high handed action, if not, arbitrary. If any action not recognized by the law, nor following the law is taken by any authority with power, such action can only be termed as high handed and arbitrary. This writ petition is entertained on the allegation of high handed arbitrary action being taken. I do not approve of the action taken by the respondents. Accordingly, the respondents will be free to take action as per the procedure established for recovery. I think in ordinary circumstance the respondents should wait till limitation period is over because within the period of limitation, the assessee has every right to prefer appear within the statutory period. The period of limitation in this case will be over on 6[th] April, 2013. This recovery proceeding may be initiated after the expiry of 6[th] April, 2013, the petitioner shall keep apart the amount of Rs.243 crores secured by STDR and shall not touch and appropriate it. Zerox copy of such receipts shall be supplied to the department. The writ petition is disposed of. Dated 13[th] March, 2013 Shiv (K.J. Sengupta, J.)