2012 (3) TMI 333 - HC - Income Tax

Demand notice raises serious issue; AO's coercive action without hearing barred; Revenue restrained from enforcing s.226(3) attachment pending appeal

UTI Mutual Fund Versus Income Tax Officer 19 (3) (2) & ors.

HC held that the demand notice dated 29 Feb 2012 raised a serious issue, including applicability of s.177(3), and that the Assessing Officer's coercive ... Recovery and issuance of garnishee notice - Legitimacy of demand notice u/s 177(3) - Assessing Officer assessed the Trust as an Association of Persons (AOP) - public holiday - Held that:- As we have noted earlier, the petitioner received the letter of demand dated 29 February 2012 on 7 March 2012. On the very same day, the petitioner moved an application for stay before the Assessing Officer. The next day, 8 March 2012, was a public holiday. The petitioner moved the CIT on 9 March 2012 with a request for intervention in the matter. The petitioner received a communication recording that the application had been disposed of, only on 13 March 2012. In the mean time a garnishee notice dated 12 March 2012 was addressed to the bankers of the petitioner calling upon them to deposit an amount of Rs.26.70 crores. Administrative directions for fulfilling recovery targets for the collection of revenue should not be at the expense of foreclosing remedies which are available to assessees for challenging the correctness of a demand. The sanctity of the rule of law must be preserved. The remedies which are legitimately open in law to an assessee to challenge a demand cannot be allowed to be foreclosed by a hasty recourse to coercive powers. Assessing Officers and appellate authorities perform quasi-judicial functions under the Act. Applications for stay require judicial consideration. Rejecting such applications without hearing the assessee, considering submissions and indicating at least brief reasons is impermissible. Thus, we are of the view that the assessee in the present case has a serious issue to urge as regards the legitimacy of the demand which has been raised by the impugned notice dated 29 February 2012, including in regard to the applicability of Section 177(3) of the Income Tax Act, 1961 on which the demand has been founded. The assessee has intervened in the appeal filed by the trust before the Commissioner (Appeals). We direct that pending the disposal of the appeal and for a period of six weeks thereafter, the Revenue shall not take any coercive steps against the petitioner for enforcing the demand as contained in the communication dated 29 February 2012. The Revenue shall also refrain from taking any coercive steps or from enforcing the notice issued by the Assessing Officer on 12 March 2012 under Section 226(3). The Attachment, if any, that has been levied shall stand lifted. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. Issues Involved:1. Legitimacy of the demand notice under Section 177(3) of the Income Tax Act, 1961.2. Applicability and enforcement of garnishee notice under Section 226(3).3. Classification of the Trust as an Association of Persons (AOP).4. Exemption status of the petitioner under Section 10(23D).5. Application of Section 61 and Section 63(a)(i) regarding revocable transfer of assets.6. Invocation of Section 161(1A) by the Revenue.7. Procedural fairness in the Revenue's recovery actions.Detailed Analysis:1. Legitimacy of the Demand Notice under Section 177(3):The petitioner challenged the demand notice dated 29 February 2012, which called for payment of Rs. 9.63 crores under Section 177(3) of the Income Tax Act, 1961. The petitioner argued that they were not independently assessed and that the Trust itself could not be regarded as an Association of Persons (AOP). The Court noted that the classification of the Trust as an AOP was prima facie unsupported by previous judgments, such as the Division Bench ruling in Commissioner of Income Tax Vs. Marsons Beneficiary Trust, which held that beneficiaries of a trust cannot be considered an AOP.2. Applicability and Enforcement of Garnishee Notice under Section 226(3):The garnishee notice dated 12 March 2012, issued to Axis Bank for Rs. 26.70 crores, was also contested. The Court emphasized that the Revenue's hasty actions in enforcing the demand without allowing the petitioner to seek legal remedies were improper. The Court directed that no coercive steps should be taken pending the disposal of the appeal and for six weeks thereafter.3. Classification of the Trust as an Association of Persons (AOP):The Trust was assessed as an AOP by the Assessing Officer, which the petitioner disputed. The Court referred to previous judgments indicating that the Trust should not be classified as an AOP, supporting the petitioner's prima facie case against such classification.4. Exemption Status of the Petitioner under Section 10(23D):The petitioner, a Trust registered with SEBI as a Mutual Fund, claimed exemption under Section 10(23D). The Court acknowledged this exemption, noting that the income of the petitioner was indeed exempt from the provisions of the Income Tax Act, 1961.5. Application of Section 61 and Section 63(a)(i) Regarding Revocable Transfer of Assets:The petitioner argued that under Section 61, any income arising from a revocable transfer of assets should be taxed as the income of the transferor, which in this case would be exempt under Section 10(23D). The Court recognized this argument as a substantial issue requiring careful consideration during the appellate proceedings.6. Invocation of Section 161(1A) by the Revenue:The Revenue contended that the Trust was a representative assessee under Section 160(1)(iv) and that the income received from HPCL qualified as business income, thus invoking Section 161(1A). The Court did not conclusively decide on this matter but acknowledged it as a significant issue for the appeal.7. Procedural Fairness in the Revenue's Recovery Actions:The Court criticized the Revenue's hasty recovery actions, which foreclosed the petitioner's legal remedies. The guidelines established in KEC International Ltd. Vs. B.R. Balakrishnan were reiterated, emphasizing the need for judicial consideration of stay applications and the avoidance of coercive measures before the disposal of such applications.Conclusion:The Court ruled in favor of the petitioner, directing that no coercive steps be taken against the petitioner for enforcing the demand or the garnishee notice until the disposal of the appeal and for six weeks thereafter. The attachment, if any, was ordered to be lifted. The judgment underscored the importance of procedural fairness and the need for the Revenue to adhere to judicial guidelines in recovery actions.