Wp/117/2017 Of Sesa Resources Ltd v. Mr. B

1 WP117-17 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 117/2017 Sesa Resources Ltd., having its registered Office at Sesa Ghor, 20 EDC Complex,Patto, Panaji Goa 403001 …..... Petitioner. V/s. 1) Asstt. Commissioner of Income-tax, Circle 1(1), Aayakar Bhawan, EDC Complex, Patto, Panaji, Goa. 2) Jt. Commissioner of Income-tax, Range- 1, Aayakar Bhawan, EDC Complex, Patto, Panaji, Goa. 3) Principal Commissioner of Income-tax, Aayakar Bhawan, EDC Complex, Patto, Panaji, Goa. ….... Respondents. Mr. Balbir Singh, Senior Advocate with Mr. Sachit Jolly and Mr R.G.Ramani, Advocate for the petitioner. Ms. S. Linhares, Junior Standing Counsel for the respondents. CORAM :- F.M. REIS & NUTAN D. SARDESSAI, JJ. Date : - 2 FEBRUARY 2017. ORAL JUDGMENT : (PER F.M. REIS, J.) Heard Mr. Balbir Singh, learned Senior Counselappearing for the petitioner and Ms. S. Linhares, learned Junior 2 WP117-17 Standing Counsel appearing for the respondents 2.Rule. Learned Counsel appearing for the respondentswaives service. Heard forthwith, with the consent of the learnedCounsel. 3. The petitioner, inter alia, prays to quash and set aside thenotices dated 16[th] January, 2017and 17[th] January, 2017 issued to StateBank of India, ICICI Bank Ltd., and HDFC Bank, under Section226(3) of the Income-tax Act, 1961 and all proceedings initiated inpursuance thereto. 4.Briefly, it is the contention of the petitioner that thesubject-matter of the above petition is in regard to the AssessmentYears 2011-12 and 2012-13 which, according to the petitioner, werecompleted under Section 143(3) of the Act, raising a tax demand of Rs.12.85 Crores and Rs.21.61 Crores receptively. The AssessmentOrders were passed on 14[th] March, 2014 and 30[th] March, 2015,respectively. It is further contended that the petitioner moved adetailed application before the respondent No.1 for stay of the demandfor such Assessment Years, inter alia, pointing out that most of theissues giving rise to the disputed demand are settled in favour of the 3 WP117-17 petitioner by various decisions of the Appellate Authorities.Subsequently, on or about 24[th] April, 2014, and 24thApril, 2015, for thetwo Assessment Years, 2011-12 and 2012-13 respectively, thepetitioner preferred appeals before the CIT (Appeals) which arepending for disposal. Thereafter, according to the petitioner, on 3[rd]January, 2017 the respondent No.1 issued a letter to the petitionerstating that a demand of Rs.40.25 Crores is outstanding for variousassessment years, which included the aforesaid demand. A detailedresponse was filed by the petitioner, inter alia, stating that the recoveryof Rs.10.74 Crores has already been made, which, according to thepetitioner is far in excess of the 15% set by the CBDT vide its OfficeMemorandum dated 29[th] February, 2016 and the decision of this Courtin the case of Andrew Telecommunications India Pvt. Ltd. vs.Principal Commissioner of Income Tax and ors., passed in WritPetition No.1021 of 2016. It is, however, contended by the petitionerthat the petitioner filed a petition before the respondent No.2 pointingout that most of the issues giving rise to the disputed demand aresettled in favour of the petitioner for which no recovery can be madeand without prejudice, more than 15% of the disputed demand, interms of the CBDT Office Memorandum dated 29/02/2016, hasalready been recovered for the Assessment Years 2011-12 and 2012- 4 WP117-17 4 WP117-17 13. The said petition came to be rejected by the respondent No.2 bydirecting the petitioner to approach the respondent No.3 though it wasadmitted that not more than 15% of the total demand can be recoveredin terms of the Office Memorandum dated 29/02/2016 issued by theCBDT. A detailed petition was, thereafter, filed before the respondentNo.3 on 18[th] January, 2017, disclosing the aforesaid facts. But,however, during the interregnum, somewhere on 16/01/2017 and17/01/2017 the respondent No.1 issued the impugned notices underSection 226(3) of the Act to the Banks, attaching the Bank Accounts ofthe petitioners, namely Account Nos.31753129234 with the SBI,136405000027 with the ICICI Bank Ltd., and 12130310000107 withthe HDFC Bank. Being aggrieved by the said notices, the petitionerhas approached this Court with the above petition. 5.Mr. Balbir Singh, learned Senior Counsel appearing forthe petitioner has pointed out that the respondents are not at alljustified to pass the impugned directions, attaching the accounts of thepetitioner as, according to him, more than 15 % of the disputed demandhas already been secured in favour of the respondents. The learnedSenior Counsel further points out that though the appeal is pendingbefore the CIT (Appeals), the respondent No.1 has erroneously 5 WP117-17 proceeded to attach the said Bank Accounts of the petitioner. Thelearned Senior Counsel further points out that this grievance of thepetitioner is no longer res integra in view of the Judgment of thisCourt in the case of Andrew Communications India Pvt. Ltd. (supra). 6.On the other hand, Ms. Linhares, learned Counselappearing for the respondents has not disputed that in fact, a sum ofRs.10.74 Crores is payable to the petitioner on account of the refundamount which comes to more than 15% of the disputed demand underthe impugned attachment order. The learned Counsel also does notdispute that the facts in the present case are identical to the facts in thecase of Andrew Communications India Pvt. Ltd. (supra). 7. We have heard the submissions of the learned Counsel andwe have also gone through the records. For the reasons stated in thesaid Judgment of this Court in the case of Andrew CommunicationsIndia Pvt. Ltd. (supra) and as it is not in dispute that the facts thereinare identical to the facts in the present case, we have no reason to takea contrary view in the present petition. Admittedly, 15% of thedisputed amount has already been recovered by the respondent-Revenue and such amount is covered by the Office Memorandumdated 29th February, 2016 issued by the CBDT. In such circumstances, 6 WP117-17 we find that the respondents were not justified to pass the impugnedattachment Notices under Section 226(3) of the Act. The claim of thepetitioner, at this stage, seeking refund of the amounts attachedpursuant to such directions, is not at all justified and cannot be grantedin the present petition. 8.The learned Senior Counsel appearing for the petitionerhas placed on record a Memo showing the actual amount in disputefor the subject assessment years, as well as the amounts recoveredbased on refund orders, which figures are not disputed by the learnedCounsel appearing for the respondents. The said Memo is marked “X”for identification. 9. In view of the above, the impugned notices dated 16thJanuary, 2017 and 17th January, 2017 issued to the State Bank of India,ICICI Bank Ltd., and HDFC Bank under Section 226(3) of the Act inrespect of the Assessment Years 2011-12 and 2012-13 are quashed andset aside. Rule is made absolute in the above terms. NUTAN D. SARDESSAI, J. ssm. F.M. REIS, J. 7 WP117-17