Wp/443/2018 Of Vodafone India Ltd v. Commissioner Of Income Tax (Tds)-2 And 2 Ors

Priya Soparkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.443 OF 2018 Vodafone India Limited… Petitioner V/s. Commissioner of Income-tax (TDS)-2 and ors. … Respondents--- Ms.Fereshte Sethna, Ms.Mrunal Parekh and Mr.Ameya Pant i/byDMD Advocates for the Petitioner.Mr.Suresh Kumar for Respondent Nos.1 to 3. --- CORAM : AKIL KURESHI AND S.J.KATHAWALLA, JJ. DATE : JUNE 03, 2019. P.C.:- 1.Leave to amend the cause title. Amendment to be carriedout forthwith. Re-verification dispensed with. 2.Heard learned counsel for the parties for final disposal ofthe petition. The petitioner has approached the Court seekingprotection against further recoveries arising out of as many as 17separate assessment orders which are in appeal before theAppellate Commissioner. The petitioner had applied previously Priya Soparkar 27 wp 443-18-o stay to the Departmental Authorities, however, the Commissionerof Income Tax by his order dated 21[st] December, 2017 refused togrant any such protection, hence this petition. One of the mainreasons cited by the said authority in the impugned order is thatthe recoveries would not cause undue financial hardship to the petitioner. By detailed interim order, Division Bench of thisCourt on 4[th] January, 2018 had granted protection to thepetitioner in following terms:- “9.In the above circumstances, it would be in theinterest of justice that pending consideration of thisPetition and the Respondent – Revenue's responseto it, that the following order is passed: (a) There shall be an ad-interim stay in terms of prayer clause (c) to the Petition i.e. Respondentsare restrained from taking any coercive steps torecover the amount of Rs.43.79 Crores or any partthereof being the outstanding demands in respect ofits Appeals pending before the Commissioner ofIncome Tax (Appeals) till the next date. (b) The Petitioners application to amend thisPetition so as to bring on record better and furtherparticulars in support of its case is allowed. (c) Amendment to be carried out on or before 5thJanuary 2018 and a copy of the amended Petitionwill also be served upon the Respondents on orbefore 5th January 2018. (d) Liberty to the parties to apply. (e) Writ Petition is adjourned to 12th January2018.” Priya Soparkar 37 wp 443-18-o 3. Learned counsel for the petitioner pointed out that throughdifferent modes the Department has already made sizablerecoveries out of the disputed tax demand, total of which comesto approximately 38.57 %. This is also borne out from thepetitioner’s averments in Paragraph 11 of the petition. Therespondents have filed reply but not disputed this factualassertion. 4.Few things therefore emerge from record. Firstly, pendingappeal the Department has recovered approximately 38% ofdisputed tax amount. Secondly, the appeals are pending sinceover 2 years by now and lastly, this Court has more than one yearback passed interim order preventing the Department fromcarrying out further recoveries pending appeals. The Departmentalcirculars also envisage stay pending appeal before theCommissioner (Appeals), ordinarily upon deposit of 20% of thedisputed tax. This requirement has also been fulfilled in thepresent case. No special circumstances are pointed out to us topermit the Department to carry out full recoveries. We furtherrecord, as stated by the counsel for the revenue that some of the appeals are already decided by the Commissioner (Appeals) andalso by the Income Tax Appellate Tribunal, which are in favour ofthe petitioner-assessee. That being the position, pendingdisposal of remaining appeals, we would not permit theDepartment to carry out any further recoveries. 5.Under the circumstances, the petition is disposed of withfollowing directions:- appeals are already decided by the Commissioner (Appeals) andalso by the Income Tax Appellate Tribunal, which are in favour ofthe petitioner-assessee. That being the position, pendingdisposal of remaining appeals, we would not permit theDepartment to carry out any further recoveries. 5.Under the circumstances, the petition is disposed of withfollowing directions:- (i)There shall be no further recovery against the petitionerarising out of the concerned assessment orders till the pendingappeals are decided. (ii)The remaining appeals which are pending shall be disposedof preferably within 8 weeks from the date of receipt of thisorder.of preferably within 8 weeks from the date of receipt of thisorder. 6.Petition disposed of accordingly. (S.J.KATHAWALLA, J.) (AKIL KURESHI, J.)….