Wp-177-19.Doc v. Income Tax Offi Cer (Tds) 2(3)(3) Mumbai And Anr

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.177 OF 2019 National Health & Education Society}Petitioner Vs Income Tax Offi cer (TDS) 2(3)(3) Mumbai and Anr. }Respondents Mr.S.C.Tiwari a/w Ms.Rutuja N. Pawar forthe Petitioner. Mr.Prakash C. Chhotaray for RespondentNo.1. CORAM :-S. C. DHARMADHIKARI &M. S. KARNIK, JJ. DATE :- MARCH 4, 2019 P.C. :- 1.The prayer in this writ petition is as under :- “(a) The Hon’ble Court may be pleased to issue a writof mandamus or a writ of certiorari or any other writin the nature of certiorari, or any other appropriatewrit, directions or orders of this Hon’ble courtdirecting Respondent No.1 not to insist upon recoveryof any part of disputed demand for A.Y.2012-13 untilthe disposal of the Petitioner’s appeal pending beforeRespondent No.2 and 2 weeks thereafter.” 2.The petitioner’s case is that the assessee/petitioner is abeneficiary of certain orders of the Tribunal for Assessment Years 2004-2005 and 2011-2012. The copies of these orders are atExhibits-A1 to A4. Thereafter, even the Assessing Officerexercising his power, in assessment under the Income Tax Act,1961 gave effect to the Tribunal's order reducing the entiredemand. That was done on 30[th] March, 2016 vide Exhibits-B1 toB7. 3.Then the statements under Section 200(3) of the IncomeTax Act, 1961 were filed by the petitioner, copies of which are atExhibits- C1 to C8. 4.Still the petitioner was served with a demand notice andthereafter the petitioner preferred appeals and also applicationsfor rectification. Fearing that there would be a coercive recovery,even application for stay has been filed. It is contended that theconcerned authority rejected the petitioner's application withoutapplying its mind. 5.This writ petition was kept pending because on merits, anidentical issue as raised in the instant petition was considered ina batch of appeals at the instance of the Revenue and in the caseof the same assessee by a Division Bench of this Court comprisingone of us (S.C.Dharmadhikari, J). 6.On 26[th] February, 2019, this Court passed its order and theRevenue's Appeals have been dismissed. 7.Now, let the petitioner make an application and invoke theguidelines also, which have been issued by the Central Board ofDirect Taxes, New Delhi dated 29[th] February, 2016 guiding theCommissioner of Income Tax (Appeals). It is not necessary thatthe Income Tax Appellate Authority will insist on a deposit ofcertain percentage of the amount and make that as a condition forgranting interim stay. In the event the petitioner approaches himand now with the reliance on the Division Bench judgmentreferred by us hereinabove, we have no doubt in our mind that theIncome Tax Appellate Authority and in this case, theCommissioner of Income Tax would definitely apply his mind andconsider the changed circumstances. He will not be influenced bythe earlier actions and orders and pass a fresh order andcommunicate the same to the petitioner. 8.Let the petitioner seek intervention once again and raise allpleas and also rely upon the Division Bench judgment. In theevent, such an application is made, the Commissioner of IncomeTax to dispose of it in the light of the Division Bench judgmentand in accordance with law within a period of two weeks from thedate of its receipt. 9.Mr.Chhotaray appearing for the Revenue is kind enough tosay that he will inform the Commissioner about the order of thisCourt and the Commissioner would then act on an authenticatedcopy of the same. 10.The writ petition is disposed of. (M.S.KARNIK, J.) (S.C.DHARMADHIKARI, J.)