Wp/8099/2019 Of M/S Fire Luxur Developers Pvt Ltd v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21 DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA| "WRIT PETITION No.8099 OF 2019 (TIT) BETWEEN: M/S. FIRE LUXUR DEVELOPERS PVT. LTD.,.A COMPANY INCORPORATED UNDER THECOMPANIES ACT, HAVING ITS OFFICE AT NO.239,THE EMPYREAN, ANCHE MUSKUR VILLAGE,LAKKUR HOBLI, CHIKKATHIRUPATHI POST,MALUR TALUK-563130.. REP. BY ITS AUTHORISED SIGNATORYMR. RAHUL JAIN, S/O. SHRI. RAVI CHAND JAIN,AGED ABOUT 52 YEARS. ... PETITIONER| (BY SRI. HARISH.V.S, ADV.,) AND" THE DEPUTY COMMISSIONER OF INCOME TAX,CIRCLE 3(1) (1), ROOM NO.22/7,2 FLOOR, BMTC BUILDING, |+ BLOCK, KORAMANGALA,BENGALURU-560 O95. ... RESPONDENT (BY SRI. K.V.ARAVIND, ADV.,) THIS WP IS FILED UNDER ARTICLES 226 AND 2277OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT|THE RESPONDENT TO WITHDRAW THE GARNISHEE.NOTICESISSUED|TO)THE|PETITIONER'S|BANKERS|RELEVANT|TO|THE|ASSESSMENTYEAR2016-17.ANNEXURE-J DATED 12.02.2019. THIS.PETITION COMING|ON FORPRELIMINARYHEARING|THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner has sought for a writ of mandamus,directing the respondent to withdraw the Garnishee notices|dated 12.02.2019 issued to the petitioner's bankers)relating to the Assessment Year 2016-2017. 2).It is the contention of the petitioner thatpursuant to the assessment order passed under S.143(3).of the Income Tax Act, 1961 (‘the Act’ for short) relating tothe assessment year in question, demand notice was)issued by the respondent. A sum of Rs.81,66,632/- being.ten percent of the disputed demand was paid by the)assessee on 25.01.7019. It is further contended that First|Appeal nas been filed by the petitioner challenging the)assessment order and the stay application filed by the petitioner has been disposed of by the respondent on06.02.2019. Being aggrieved, the petitioner has filed the|petition before the First Appellate Authority and during thependency of the stay application before the First Appellate|Autnority, the garnishee notices were issued by the.respondent. Subsequent to the filing of the writ petition, |the.department.nas|recoveredthe.aMOoOunof|Rs.1,48,72,743/- from tne bankers of the petitioner on|20.02.2019 by way of a Demand Draft and the same is not)encashed so far. Accordingly, learned counsel for thepetitioner seeks for a direction to the respondent to restore|back the said amount to the account of the petitioner andpermit the petitioner to agitate the matter before the.Appellate Authority where the stay application is pending|for consideration, directing the First Appellate Authority to|dispose of the same within a time frame. 3.Learned counsel for the revenue would submit.that in terms of the Office Memorandum (F.NO.404/72/93-ITCC) dated 29.02.2016, in case if the assessee is) aggrieved by the order of stay, he / it has to move beforethe administrative Pr. CIT/CIT for a review of the decision.of the Assessing Officer. The assessee has preferred anappeal before the Commissioner of Income-tax (Appeals)|which is not maintainable. Hence, the petitioner having|deposited ten per cent of the demand, if the balance ten)percent is paid whicn is the order required to be passed by|the Competent Officer in terms of the Notification dated|29.02.2016, the same _ snail be considered by threspondent. 4Having heard the rival submissions of thelearned counsel appearing for the parties, this Court finds|that there is considerable force in the arguments advancedby the learned counsel! for the revenue. That the AssessingOfficer was empowered to grant an interim order of stayprovided 20% of the disputed demand is paid by theassessee. However, it is not in dispute that 10% of the)disputed demand is already paid by the assessee. In sucn.circumstances, justice will be met if a direction is issued to| the petitioner to deposit 10% of the balance disputedamount before the respondent within a period of two.WeeKS. 4Having heard the rival submissions of thelearned counsel appearing for the parties, this Court finds|that there is considerable force in the arguments advancedby the learned counsel! for the revenue. That the AssessingOfficer was empowered to grant an interim order of stayprovided 20% of the disputed demand is paid by theassessee. However, it is not in dispute that 10% of the)disputed demand is already paid by the assessee. In sucn.circumstances, justice will be met if a direction is issued to| the petitioner to deposit 10% of the balance disputedamount before the respondent within a period of two.WeeKS. Writ petition stands disposed of directing therespondent to restore the amount if any collected from thepetitioners bankers pursuant to the garnisnee notices)issued impugned herein and withdraw the’ garnisneenotices subject to the undertaking to be given by the.petitioner that 10% of the disputed demand would be)deposited within a period of two weeks from today. sac* Sd/-|JUDGE