2018 (12) TMI 334 - HC - Income Tax

Court halts recovery pending appeal decision, petitioner protected from defaulter status, merits left to Appellate Authority.

M/s. Cavinkare Private Limited (formerly known as M/s. Hemalatha Enterprises Private Limited) Versus The Commissioner of Income Tax (Appeals), The Assistant Commissioner of Income Tax Central Circle -2 (1), The Principal Commissioner of Income Tax Central Circle -2 And The Manager Federal Bank 62

The Court directed that no further recovery should be made until the Appellate Authority issued its decision on the appeal reserved for orders on ... Recovery proceedings - 20% of the demand recovered from the petitioner in pursuant to the impugned order - stay petition - Held that:- There is no dispute to the fact that the very same Appellate Authority has already passed an order on 27.06.2018 granting stay of 80% of the demand subject to the condition that the petitioner pays 20% of the total demand. No doubt, that the said order was set aside and the matter was remitted back to the Appellate Authority for passing fresh orders in the stay petition. It is true that the stay petition was dismissed by the Appellate Authority and the appeal itself was heard and reserved for orders. As the fact remains that 20% of the total demand has been recovered from the petitioner in pursuant to the impugned order dated 11.10.2018, this Court is of the view that interest of justice would be met, if the respondents are directed not to make any further recovery till an order is passed by the Appellate Authority in the appeal filed by the petitioner, which is reserved for orders on 25.09.2018. The first respondent-Appellate Authority shall pass orders in the appeal within a period of 12 weeks from the date of receipt of a copy of this order, since it is stated that there is some change of officer. Issues:1. Challenge to proceedings dated 11.10.2018 by the second respondent.2. Dispute over recovery of 20% of outstanding demand.3. Appellate Authority's order dated 27.06.2018 and subsequent developments.4. Impugned communication by the second respondent.5. Attachment of petitioner's bank account and recovery of 20% of the demand.6. Direction regarding further recovery pending Appellate Authority's order.7. Decision on the writ petition and related directions.Analysis:1. The writ petition challenged the proceedings dated 11.10.2018 issued by the second respondent, requiring the petitioner to attend the office with proof of payment. The petitioner had filed appeals and stay petitions regarding the assessment year 2011-12, leading to a series of legal actions.2. The dispute arose when the Appellate Authority's order dated 27.06.2018, granting stay of 80% of the demand subject to payment of 20% by the petitioner, was not in line with previous court directions. This discrepancy prompted the petitioner to file another writ petition challenging the Appellate Authority's order.3. Following subsequent legal proceedings, including the disposal of the writ petition on 09.08.2018, the Appellate Authority rejected the stay petition on 24.09.2018 and reserved the appeal for orders on 25.09.2018. The impugned communication by the second respondent was based on the Appellate Authority's actions.4. The petitioner's bank account was attached, and 20% of the demand was recovered, leading to the current dispute. The petitioner argued against further recovery pending the Appellate Authority's decision, while the respondents contended that without a stay, the recovery was justified.5. The Court acknowledged the previous stay order, the subsequent dismissal, and the ongoing appeal process. Considering that 20% of the demand had already been recovered, the Court directed that no further recovery should be made until the Appellate Authority issued its decision on the appeal reserved for orders on 25.09.2018.6. The writ petition was disposed of with specific directions: the Appellate Authority was given 12 weeks to decide on the appeal, no further recovery was allowed until then, and the petitioner was not to be treated as a defaulter due to the recovered amount. The Court clarified that it was not expressing any opinion on the assessment order or the appeal's merits, leaving those matters for the Appellate Authority to consider.7. In conclusion, the Court's decision aimed to ensure justice by halting further recovery pending the Appellate Authority's decision, maintaining the status quo regarding the recovered amount, and allowing the appeal process to proceed without interference.