V.thutharipalayam, V.kallipalayam Postpalladam Taluk, Tiruppur District v. The Commissioner Of Income Tax (Appeals) Coimbatore. Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.02.2022 CORAM : THE HONOURABLE MR.JUSTICE R.SURESH KUMAR Writ Petition No.3922 of 2022and W.M.P.Nos.4073 & 4074 of 2022 K 553 V.Thutharipalayam PrimaryAgricultural Cooperative Credit Society Ltd.,Rep.by its Secretary G.Dhanabakkiam V.Thutharipalayam, V.Kallipalayam PostPalladam Taluk, Tiruppur District. ...Petitioner -Vs- 1. The Commissioner of Income Tax (Appeals) Coimbatore. Coimbatore. 2. The Additional / Joint / Deputy / Assistant Commercial of Income Tax / Income Tax Officer, Income Tax Department National Faceless Assessment Centre Delhi. National Faceless Assessment Centre Delhi. 3. The Income Tax Officer Income Tax Department Income Tax Department Ward 2(1), TPR No.121, 60 Feet Road Tiruppur – 641 602. ...Respondents Tiruppur – 641 602. ...Respondents Prayer : Writ Petition under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Certiorari callingfor the entire records relating to the impugned order passed bythe 2[nd] respondent in DIN No.ITBA/AST/S/144/2021-22/1034520461(1)dated 29.07.2021 and quash the same. For Respondents : Mr.A.N.R.Jayapratap Junior Standing Counsel O R D E R The prayer sought for herein is for a Writ of Certioraricalling for the entire records relating to the impugned orderpassed by the 2[nd] respondent in DIN No.ITBA/AST/S/144/2021- https://hcservices.ecourts.gov.in/hcservices/ 22/1034520461(1) dated 29.07.2021 and quash the same. 2.The petitioner is a Cooperative Society, against whichthere has been an assessment order dated 29.07.2021 underSection 144 read with Section 144-B of the Income Tax Act, 1961(In short 'the Act'). Challenging the said assessment order, thepresent writ petition has been filed. 3.Mr.C.Prakasam, learned counsel for the petitioner wouldsubmit that, if at all the petitioner wants to file an appealunder the provisions of the Income Tax Act to the appellateauthority against the order impugned ie., the assessment order,there should not be any pre-condition insisting the petitionerto make a pre-deposit of 20% of the demand, as that conditionhas not been imposed under Section 246-A of the Act. Therefore,without insisting payment of 20% of the demand the petitionershall be permitted to file an appeal. Since that has not beendone and the assessing officer, by an order dated 30.12.2021directed the petitioner to pay 20% of the demand, the petitionerhas been driven to this Court to file this writ petition againstthe assessment order. 4.Heard Mr.A.N.R.Jayapratap, learned Junior Standing Counselappearing for the respondents, who would submit that, as againstthe impugned order ie., the assessment order dated 29.07.2021 ifat all the petitioner wants to file an appeal, they can file anappeal before the Commissioner of Income Tax (Appeals) and forfiling of the appeal and to entertain the appeal, there could beno pre-condition of deposit of 20% of the demand. 5.But at the same time, if the petitioner insists for anystay of the demand the petitioner has to necessarily approachthe assessing authority under Section 220(6) of the Act and inthis regard, already a communication has been sent by theassessing officer on 30.12.2021 directing the petitioner to pay20% of the demand and on such payment, the remaining demand of80% would be stayed. When that being so, the petitioner cannotchallenge the assessment order directly before this Court andhence the prayer sought for in this writ petition cannot beentertained and on that ground itself, the writ petition isliable to be rejected, he contended. 6.I have considered the rival submissions made by thelearned counsel on either side and have perused the materialsplaced on record. 7.As has been rightly pointed out by the learned StandingCounsel appearing for respondent Revenue, the petitioner in factfiled an appeal before the Commissioner of Income Tax (Appeals)against the impugned order. However, the said appeal though has 6.I have considered the rival submissions made by thelearned counsel on either side and have perused the materialsplaced on record. 7.As has been rightly pointed out by the learned StandingCounsel appearing for respondent Revenue, the petitioner in factfiled an appeal before the Commissioner of Income Tax (Appeals)against the impugned order. However, the said appeal though has https://hcservices.ecourts.gov.in/hcservices/ been filed and it is pending, the petitioner has not paid 20% ofthe demand.Therefore, insisting the same, the said communicationdated 30.12.2021 has been issued by the assessing authority,where the assessing authority directed the petitioner to pay 20%of the demand and also file an application seeking for stay ofthe remaining 80% of the demand. 8.In this context, though the learned counsel for thepetitioner relied upon a decision of this Court dated 30.07.2021in the matter of “No.K2051 Vijayapuram Urban Cooperative CreditSociety Ltd., -Vs- The Commissioner of Income Tax (Appeals)” ,where the learned Judge has stated that under Section 246A ofthe Act, no such pre-deposit for preferring the appeal iscontemplated and the petitioners are not liable to pay the pre-deposit for the purpose of considering the appeal. 9.Heavily relying upon the aforesaid decision, the learnedcounsel for the petitioner would insist that, insofar as theappeal filed by the petitioner is concerned, it should beentertained and decided without insisting the petitioner to makeany pre-deposit as has been indicated by the assessing authorityvide his communication dated 30.12.2021. 10. In fact the petitioner has attempted to wrongly fit inthe afore cited decision of the learned Judge dated 30.07.2021.What has been stated in the said order is that, for entertainingthe appeal under Section 246A of the Act, there could be nocondition of pre-deposit and therefore, without insisting thepre-deposit the appeal to be filed under Section 246A of the Actshall be entertained. Here also, absolutely there is no quarrelabout the principle and in fact the appeal filed by thepetitioner before the Commissioner of Income Tax (Appeals) hasbeen entertained. 11.However, once the appeal is filed, during the pendency ofthe appeal, it is open to the assessing authority to make ademand. In order to avoid to make the payment of the demand,one provision is available under the Act ie., Section 220(6) ofthe Act, under which the assessee can approach the assessingauthority where he can seek for stay of the demand. If any suchapplication is filed, the same shall be decided by the assessingauthority at his discretion, of course imposing certainconditions, depending upon the facts and circumstances of thecase. 12.Here in the case in hand, though such an application isnot filed by the petitioner, the assessing authority, suo-motuissued the communication dated 30.12.2021 directing thepetitioner to pay 20% of the demand and further directed thepetitioner to file application to seek stay of the remaining 80% of the demand. 13.This proceedings issued by the assessing authority is intune with Section 220(6) of the Act. Therefore, the petitionerneed not construe that such insisting of 20% of the demand is apre-deposit required for entertaining the appeal under Section246A of the Act, but it is only a condition imposed by theassessing authority for grant of stay for the remaining amountof the demand under Section 220(6) of the Act. Therefore, forthat reason the petitioner cannot once again challenge theimpugned assessment order before this Court invoking theextraordinary jurisdiction under Article 226 of the Constitutionof India. 14.Therefore for all these reasons, this Court is notinclined to accept the prayer as sought for in this writpetition. Accordingly, the writ petition fails and it isdismissed. 14.Therefore for all these reasons, this Court is notinclined to accept the prayer as sought for in this writpetition. Accordingly, the writ petition fails and it isdismissed. 15.However, this dismissal shall not preclude the petitionerto make an application under Section 220(6) of the Act to theassessing authority in tune with the communication dated30.12.2021 and if any such application is filed, the assessingauthority shall consider the same and decide it at hisdiscretion by imposing any condition, by taking into account thefinancial condition and other aspects of the petitioner being aCooperative Society and pass orders thereon. 16.With the above directions, this writ petition standsdismissed.No costs. Consequently, connected miscellaneouspetitions are also dismissed. Sd/- Assistant Registrar(CS-VIII) //True Copy// KST Sub Assistant Registrar To 1. The Commissioner of Income Tax (Appeals) Coimbatore. Coimbatore. 2. The Additional / Joint / Deputy / Assistant Commercial of Income Tax / Income Tax Officer, Income Tax Department National Faceless Assessment Centre Delhi. Commercial of Income Tax / Income Tax Officer, Income Tax Department National Faceless Assessment Centre Delhi. 3. The Income Tax Officer Income Tax Department Ward 2(1), TPR No.121, 60 Feet Road Tiruppur – 641 602. +1cc to Mr.A.P.Srinivas, Advocate, S.R.No.13142 W.P.No. 3922 of 2022 MT(CO)RGA(23/03/2022)