Wp/4132/2022 Of Susmita Dinesan v. Income Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS THE HON'BLE MR.JUSTICE R.SURESH KUMAR Susmita Dinesan ... Petitioner Income Tax OfficerNon-Corporate Ward 17(7)Income Tax Office - BSNL Tower,No.16, Greams Road,Chennai - 600 006. Prayer : Writ Petition filed under Article 226 of Constitutionof India praying for issuance of a Writ of Mandamus, calling forthe records of the respondent contained in its order, dated07.02.2022 bearing No.ITBA / COM / F / 17 2021-22 / 1039483635(1) for Assessment Year 2011-12 for PAN : and toquash the same as illegal, arbitrary and unjust andconsequently, direct the respondents to forbear from taking anyfurther steps towards the recovery of the demand issued pursuantto the assessment order, dated 16.12.2019 issued for theAssessment Year 2011-12 pending disposal of the petitioner'sappeal by the Commissioner of Income Tax (Appeals), Chennai. ORDER The prayer sought for herein is for a writ of certiorarifiedmandamus calling for the records of the respondent contained inits order, dated 07.02.2022 bearing No.ITBA / COM / F / 17 2021-22 / 1039483635(1) for Assessment Year 2011-12 for PAN : and to quash the same and consequently, direct the https://hcservices.ecourts.gov.in/hcservices/ respondents to forbear from taking any further steps towards therecovery of the demand issued pursuant to the assessment order,dated 16.12.2019 issued for the Assessment Year 2011-12 pendingdisposal of the petitioner's appeal by the Commissioner ofIncome Tax (Appeals), Chennai. 2. For the Assessment Year 2011-12, there has been an orderof assessment, dated 16.12.2019, which according to thepetitioner has never been served on her and only at the time ofgetting the penalty proceedings under Section 271(1)(c) of theIncome Tax Act 1961 (in short "the Act"), she was able toreceive the assessment order, dated 16.12.2019 from the facelessassessment centre only on 23.12.2021. Thereafter she filed theappeal before the CIT (Appeals) against the assessment order,dated 16.12.2019 on 24.01.2022. 3. In the meanwhile, the petitioner had filed an applicationunder Section 220 (6) of the Act to the respondent who is theAssessing Authority on 22.01.2022, seeking for a stay of thedemand by treating the assessee, who is not in default. 4. However, the said application submitted by the petitionerbefore the respondent has now been rejected through the impugnedorder, dated 07.02.2022 stating the reason that, the petitionershould approach the Appellate Authority to file such anapplication for stay. Aggrieved over the same, the present writpetition has been filed. 5. Mr.Suhrith Parthasarathy, learned counsel appearing forthe petitioner would state that, though the assessment order wasdated 16.12.2019, it was not served upon the petitioner andaccording to her, it was not at all available in the e-portalalso and despite her filing of multiple grievance petitions andsending repeated email reminders to the respondent requesting acopy of the assessment order, it was provided to her and shereceived a copy of the assessment order, dated 23.01.2022 fromthe ACIT faceless assessment centre in the course of the penaltyproceedings under Section 271(1)(c) of the Act. Thereforeimmediately she filed an application of stay before therespondent and also filed appeal before the Appellate Authority,where in view of the delay, the appeal is yet to be numbered. 6. However, in the meanwhile, since the petitioner can availthe remedy from the Assessing Authority under Section 220(6) ofthe Act, such an application was filed, however the same hasbeen rejected citing the reason that the petitioner shouldapproach the Appellate Authority, hence the learned counselseeks indulgence of this Court. 6. However, in the meanwhile, since the petitioner can availthe remedy from the Assessing Authority under Section 220(6) ofthe Act, such an application was filed, however the same hasbeen rejected citing the reason that the petitioner shouldapproach the Appellate Authority, hence the learned counselseeks indulgence of this Court. 7. However, Mr.D.Prabhu Mukunth Arunkumar, learned Juniorstanding counsel appearing for the respondent would submit that,it has to be proved by the petitioner assessee that theassessment order, dated 16.12.2019 has not been served on her sofar and she has not received it. 8. Since the appeal has been belatedly filed, admittedly,only on 24.01.2022, i.e., after the filing of the applicationunder Section 220(6) of the Act before the Assessing Authorityon 22.01.2022, on considering the said factual matrix, insteadof exercising it, it was directed the petitioner to approach theCIT (Appeals) to file the stay petition. Therefore the learnedstanding counsel would submit that, there is absolutely noinfirmity in the said order, dated 07.02.2022, hence he seeksdismissal of this writ petition. 9. I have considered the said rival submissions made by bothsides and have perused the materials placed before this Court. 10. It is the claim of the petitioner that, it is a very lowstake claim, wherein whether the petitioner has presentable casebefore the Appellate Authority has to be decided only by theAppellate Authority, for which appeal has been immediatelyfiled, i.e., after receipt of the assessment order from thefaceless assessment centre only on 23.12.2021 and in themeanwhile when application for stay was filed, for which thepetitioner assessee is entitled to under Section 220(6) of theAct, the same should have been considered on merits, by usinghis discretion, of course by imposing certain conditions,however, the Assessing Authority, i.e., the respondent hereinoutrightly rejected the same by directing the petitioner toapproach the Appellate Authority. 11. In this context, if we look at the language used inSection 220(6) of the Act, it is the complete discretion of theAssessing Authority to deal with such application filed underthe said section and it can be disposed of by the AssessingAuthority by using his discretion, of course by imposing certainconditions depending upon the circumstances of the case. 12. When that being so, the present order which is impugnedherein, dated 07.02.2022, driving the petitioner to approach theAppellate Authority may not be good reason be construed as areason that can be given by the Assessing Authority within themeaning of Section 220(6) of the Act. 13. Therefore, in that view of this matter, this Court isinclined to dispose of this writ petition with the followingorder : https://hcservices.ecourts.gov.in/hcservices/ (i) That the impugned order is set aside and thematter is remitted back to the respondent, where thepetitioner can make a fresh application also alongwith an earlier application, where if he needs to makeany additional input or reason for considering hisapplication for grant of stay and such applicationshall be considered and decided by the respondentAssessing Authority by using his discretion, where, ifthe Assessing Authority wants to impose any conditionswith regard to the payment of certain percentage ofthe demand, that can also be imposed and accordingly,the said application to be filed along with theearlier application can be decided on merits at theearliest possible time. (ii) In the meanwhile, the petitioner shall alsotake steps to pursue the appeal filed by her beforethe Appellate Authority. 14. With these directions, this writ petition is disposedof. No costs. Consequently, connected miscellaneous petition isclosed. Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar tsvn (ii) In the meanwhile, the petitioner shall alsotake steps to pursue the appeal filed by her beforethe Appellate Authority. 14. With these directions, this writ petition is disposedof. No costs. Consequently, connected miscellaneous petition isclosed. Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar tsvn ToThe Income Tax OfficerNon-Corporate Ward 17(7)Income Tax Office - BSNL Tower,No.16, Greams Road, Chennai - 600 006.+1cc to M/s.Hema Muralikrishnan, Advocate, S.R.No.13240+1cc to M/s.Suhrith Parthasarathy, Advocate, S.R.No.13147 CP(CO)RLP(22/03/2022)