Wp/4896/2023 Of Thrissur Expressway Limited v. The Income Tax Officer

THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) TUESDAY,THE TWENTY FIRST DAY OF FEBRUARYTWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE THE CHIEF JUSTICE UJJAL BHUYANANDTHE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION NO:4896 OF 2023 Between: Thrissur Expressway Limited, Rep. by its Director t\/ Prudhvi Kumar Reddy,S/o. Raja Mohan Reddy, aged about 46 years, Registered Off - 1-80/40/5P/58-65, Shilpa Homes Layout, Gachibowli, Hyderabad-32 ...PETITIONER AND 1The lncome Tax Officer, Centralized Processing Centre, lncome TaxDepartment, Bangalore.Department, Bangalore. 2The lncome Tax Officer, Ward 2(1), sth Floor, Signature Towers, Sy.No.6(P)of Kondapur, Opp- Botanical Gardens, Serlingampally(M), RR District,Hyderabadof Kondapur, Opp- Botanical Gardens, Serlingampally(M), RR District,Hyderabad 3. The Principal Commissioner of lncome Tax Range 2, 6th Floor, SignatureTowers, Sy.No.6(P) of Kondapur, Opp- Botanical Gardens,Sedingampally( M), RR District, HyderabadTowers, Sy.No.6(P) of Kondapur, Opp- Botanical Gardens,Sedingampally( M), RR District, Hyderabad 4. The Commissioner of lncome Tax (Appeals), -lncome Tax DepartmentNational Faceless Appeal Centre [( ]NaFAC)National Faceless Appeal Centre [( ]NaFAC) 5. Union of lndia, Department of Revenue, Represented by its Secretary(Revenue), North Block, New Delhi.(Revenue), North Block, New Delhi. 6. Axis Bank Limited, Rep.by the Branch Manager, Hyderabad ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in thecircumstances stated in the affidavit filed therewith, the High Court may bepleased to issue a writ of mandamus or any other appropriate writ, order ordirection declaring the action of the 2nd Respondent in issuing garnishee noticeITBA/RCV/S/2 26(3)1 I 2022-23 I 1 O 47 47 5593( 1 ) d ated 1 7 I 1 1 I 2022 a nd amend m entletter F.No.lTO, W-2(1|AADCf17O3H|2O22-23 dated 1211212022 during thependency of appeal dated 2BlO2l2O22 before the 4th Respondent as arbitrary,illegal and violative of principles of natural [justice ]and consequently i) grant stayof garnishee notice IrBA/RCV/S/226(3) 112022-2311047475593(1) dated 1711112022 and [amendment ][letter ][F.No.lTO, ][W-2(1yAADCT17O3H|2O22-23]dated 1211212022 [to ][the ][extent ][of A.Y. ][2019-20 until disposal ][of ][the ][appeal ][or]stay [petition ][pending before ][the 4th ][Respondent ii) ][further ][not ][take ][any ][coercive]action [until ][disposal ][of ][the ][appeal ][or ][stay ][petition ][pending before ][the ][4th]Respondent. lA NO: 1 OF 2023 Petition under Section 151 CPC [praying ]that in the circumstances statedin the affidavit [filed ][in support ][of ][the ][petition, ][the ][High ][Court may be ][pleased ][to]grant stay of [garnishee ][notice ][ITBA/RCV|SI226(3)_112022-2311047475593(1)]dated [17 ] [1 ][1 ][12022 ][and ][amendment ][letter ][F. ][No. ][lTO, ][W-2( I ][yAADCT ][1 ][7 ][03H12O22-]23 dated [1211212022 ][to the ][extent ][of 4.Y.2019-20 ][passed by ][2nd ][Respondent]pending disposal of the [writ ][petition.] Counsel [for ][the Petitioner ][: SRI ] Counsel forthe [Respondents ][1 ] [4: ][M/S. K. ] , Counsel [for ][the Respondent ][5: ] [GADI PRAVEEN KUMAR, ] CENTRAL Counsel [forthe ][Respondent 6: ] The Goud [made the ][following: ] I THE HON'BLE THE CHIEF JUSTICE UJJAL BHIIYANAND THE HON'BLE SRI JUSTICE N. TUKARAMJI WRIT PETITION No.4896 of 2023 ORDER: (Per the Hon'ble the Chief Justtce Ujjal Bhugan) Heard Mr. Raja Shekar Rao Salvaji, learned counselfor the petitioner arld Ms. K. Mamata Choudary, learnedSenior Standing Counsel, Income Tax Department lorrespondent Nos.1 to 4. We have also heard Mr. G.PraveenKumar, learned Deputy Solicitor General of India lorrespondent No.5. Counsel forthe [Respondents ][1 ] [4: ][M/S. K. ] , Counsel [for ][the Respondent ][5: ] [GADI PRAVEEN KUMAR, ] CENTRAL Counsel [forthe ][Respondent 6: ] The Goud [made the ][following: ] I THE HON'BLE THE CHIEF JUSTICE UJJAL BHIIYANAND THE HON'BLE SRI JUSTICE N. TUKARAMJI WRIT PETITION No.4896 of 2023 ORDER: (Per the Hon'ble the Chief Justtce Ujjal Bhugan) Heard Mr. Raja Shekar Rao Salvaji, learned counselfor the petitioner arld Ms. K. Mamata Choudary, learnedSenior Standing Counsel, Income Tax Department lorrespondent Nos.1 to 4. We have also heard Mr. G.PraveenKumar, learned Deputy Solicitor General of India lorrespondent No.5. 2. By Iiling this petition under Article 226 of theConstitution of India, petitioner has assailed garnisheenotice dated 17.L1.2O22 issued by the 2"d respondentunder Section 226(3) of the Income Tax Act, 1961 (brieflyreferred to hereinafter as the ActJ and addressed to the 6threspondent i.e., Axis Bank Limited, Hyderabad for/attachment of bank account of the petitioner. 2HCJ & NTRJW.P.No.4896 of 2023 3. We may mention that subsequent to issuance -ofthe aforesaid notice dated 17.11.2022, 2nd respondent hadissued a Corrigendum dated 12.12.2C22 stating that therewas a typographical error in the notice dated 17.11.2022.Instead of assessment years 2017-78,20lB-19 and 2O19-20 for a sum of Rs.73,25,51,250.00 due from thepetitioner, it should be assessment years 2Ol9-2O and2O2O-21 for a sum of Rs.31,65,81,430.00. 4. Be it stated that for the assessment year 201920, petitioner had submitted its return of income on29.1O.2019. Ultimately intimation under Section 143(1) ofthe Act was issued by the Centralized Processing Centre tothe petitioner on lO.ll.2O2O. As per the aforesaidintimation, net amount payable by the petitioner for theaforesaid assessment year: was quantified atRs.27,7O,9O,200.O0. However, an order of rectification waspassed under Section 154 of the Act. ThereaJter, petitionerpreferred appeal. 5. On a query by the Court, learned counsel for the petitioner submits that the appeal was filed on28.02.2022. As a matter of fact, two appeals have beenpreferred by the petitioner,one against the intimationunder Section 1a3(1) of the Act and the second one againstthe order passed under Section 154 of the Act. However,petitioner has not paid the outstanding dues as per theintimation as rectified. Therefore, 2"d respondent hasissued the impugned garnishee notice dated 17 .1I.2022. 6. Faced with such a situation, petitioner has filedstay petition on 03.01.2023 before the appellate authorityi.e., respondent No.4 for stay of demand. 7. With the grievance that no decision has beentaken by the appellate authority while the petitionercontinues to face garnishee proceeding, the present writpetition has been filed. 8. On a perusal of the stay petition, we find thatthe same has been liled under Section 220(6) of the Act, as /I IHCJ & NrRJW.P.No-4896 of 2023 - -per which provision such a petition is required to be filedbefore the assessing ofhcer. 9 . Be that as it may, it is trite law that an appellate authority which is competent to hear an appealhas aiso the power to grant interim relief relatable to theappeal. Power to grant stay is incidental and ancil1ary tot}-re pos'er to entertain an appeal. 10. Notwithstanding wrong mentioning of theprovision, we are of the view that since an application hasbeen filed by the petitioner before the 4th respondentappellate authority, the said authority should consider thestay prayer of the petitioner one way or the other within areasonable time. 1 i. Accordingly, we direct the 4th respondent to consider the stay prayer of the petitioner dated 31.O1.2023 after giving arr opportunity of hearing to the petitioner arrd\thereafter pass an appropriate order in accordance withlaw. )HCJ & NTRJW.P.No.4896 of 2023 Be that as it may, it is trite law that an appellate authority which is competent to hear an appealhas aiso the power to grant interim relief relatable to theappeal. Power to grant stay is incidental and ancil1ary tot}-re pos'er to entertain an appeal. 10. Notwithstanding wrong mentioning of theprovision, we are of the view that since an application hasbeen filed by the petitioner before the 4th respondentappellate authority, the said authority should consider thestay prayer of the petitioner one way or the other within areasonable time. 1 i. Accordingly, we direct the 4th respondent to consider the stay prayer of the petitioner dated 31.O1.2023 after giving arr opportunity of hearing to the petitioner arrd\thereafter pass an appropriate order in accordance withlaw. )HCJ & NTRJW.P.No.4896 of 2023 12. Let the above exercise be carried out andconcluded within a period ol four (04) weeks from the dateof receipt of a copy of this order. 13. We make it clear that the garnishee notice dated 17.11.2022, as modilied on 12.12.2022, n,ill besubject to such order that may be passed by the 4threspondent on the stay petition of the petitioner. 14. This disposes of the Writ Petition. However,there shall be no order as to costs. 15. Miscellaneous applications pending, if any,1nthis Writ Petition shall stand closed. 16. Petitioner to communicate a copy of this order to the 4tl, respondent within seven days lrom receipt of acopy of this order. SD/. K.SREERAMA ASSTSTANT //TRUE COPY//SECTION to',. ,n" lncome Tax officer' Centralized Processing Centre' lncome TaxDeoartment, [[Bangalore']]Deoartment, [[Bangalore']] Deoartment, [[Bangalore']]2. Th6 lncome [Tax Ottiie'r, ][Ward ][2(1), ][5thf ][loor, Signature ][To-w-erp, ][Sy ][No ][6(P)]of Kondapur, [opp- ][aoi'ni";l 6uio6''l' ][Serlinganipallv(M)' ] [District']Hyderabad2. Th6 lncome [Tax Ottiie'r, ][Ward ][2(1), ][5thf ][loor, Signature ][To-w-erp, ][Sy ][No ][6(P)]of Kondapur, [opp- ][aoi'ni";l 6uio6''l' ][Serlinganipallv(M)' ] [District']Hyderabad J.The Principal Commissioner of lncome Tax Range 2, 6th Floor, SignatureTowers, Sy.No.6(P) of Kondapur, Opp- Botanical Gardens, Serlingampally([,4),RR District, HyderabadTowers, Sy.No.6(P) of Kondapur, Opp- Botanical Gardens, Serlingampally([,4),RR District, Hyderabad4.The Commissioner of lncome Tax (Appeals), lncome Tax Department National Faceless Appeal Centre ( NaFAC)5.Union of lndia, Department of Revenue, Represented by its Secretary(Revenue), North Block, New Delhi.(Revenue), North Block, New Delhi.6.Axis Bank Llmited, Rep.by the Branch Manager, Hyderabad 7.One CC to SRl. RAJA SHEKAR RAO SALVAJI Advocate B.One CC to SRl. K IVIAMATA, SC FOR INCOME TAX, Advocate 9.One CC to SRI DEPUTY SOLICITOR GENERAL OF lNDlA, 10Two CD Copies10Two CD CopiesEDS GJP HIGH COURT DATED:21 10212023 1[1rtr][ STAT.](5os [s ][u[t ][?r.'1i]Ll:i.:..,,,2';t ORDER WP.No.4896 of 2023 DISPOSINGE WRIT PETITION WITHOUT COSTS