2017 (11) TMI 920

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....Department, Indore. 03- The facts of the case reveal that the petitioner Company has developed industrial area near Pithampur, Sagore, Special Economic Zones on the land of the State Government as stated in the writ petition. For the assessment year 2014-15, the petitioner has declared total income of Rs. 57,01,03,020/- and an assessment order has been passed under Section 143(3) of the Income Tax Act. 04- The total income of the petitioner has been assessed as per the assessment order amounting to Rs. 1,26,99,79,660/-. Thereafter, a demand notice has been issued on 28/04/2017. The petitioner has preferred an appeal in the matter and at the same time an application has been preferred under Section 220(6) of the Income Tax Act, 1961 for stay of the demand subject to deposit of the 20% of the outstanding demand. 05- The petitioner's contention is that outstanding demand of Rs. 57,85,56,110/- comes to Rs. 11,57,11,222/- and as the petitioner has already deposited a sum of Rs. 12,00,00,000/- through ICICI Bank for the assessment year 2014-15 and the same has been brought to the notice of the respondent on 04/10/2017. It has been contended that the petitioner is not require....

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....nding demand till the due date 28/05/2017. There upon, letters dated 14/08/2017 and 07/09/2017 were issued to the petitioner assessee to deposit the outstanding demand, however, there was no compliance. In response to the Stay Application filed by the petitioner assessee on 19/05/2017, an order dated 25/09/2017 was passed by the respondent directing the petitioner to deposit at least 20% of the outstanding demand on or before 03/10/2017 in view of revised CBDT Instruction dated 31/07/2017. 10- Learned counsel for the respondent submits that as the petitioner assessee failed to pay the demand as directed, vide Order U/s 226(3) dated 04/10/2017, the Bank accounts of the petitioner assessee were attached. The petitioner assessee has willfully misquoted the facts and has made a factual matrix which is untenable legally. 11- Her contention is that MPAKVN Ltd. and SEZ (Indore) Ltd. are separate legal entities. Their returns of income have been assessed separately. Separate demands under Income tax Act, 1961 were raised. The petitioner has clubbed the demand in both cases and then made a statement before the Hon'ble Court in its petition that 20% of the outstanding demand has been p....

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....f payment of demand against the assessment order passed and is merely giving credit of Prepaid Self Assessment Tax. A prayer has been made for dismissal of the both the writ petitions. 15- Heard learned counsel for the parties, perused the record and the matter is being disposed of with the consent of the parties at admission stage itself. 16- This Court has carefully gone through the impugned letter issued by the Income Tax Department. Undisputedly, the petitioner Company has filed a return of income electronically on 30/11/2014 declaring total income at Rs. 57,01,03,020/-. Thereafter, notices were issued as the case was selected for scrutiny under Section 143(2) and 142(1) of the Act of 1961 on 01/09/2015. An assessment order was passed under Section 143(3) of the Income Tax Act, 1961 and against the declared income of Rs. 57,01,03,020/-, the income assessed is at Rs. 1,26,99,79,660/-. 17- The CBDT circular dated 29/02/2016 does empower the Department to stay the demand till the disposal of the first appeal on payment of 15% of disputed demand. Relevant paragraph of circular issued by Central Board of Direct Taxes (CBDT) in paragraph No.4 reads as under:- "4. In....

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....review, as the case may be. (E) In granting stay, the Assessing Officer may impose such conditions as he may think fit. He may, inter alia,- (i) require an undertaking from the assessee that he will cooperate in the early disposal of appeal failing which the stay order will be cancelled. (ii) reserve the right to review the order passed after expiry of reasonable period (say 6 months) or if the assessee has not cooperated in the early disposal of appeal, or where a subsequent pronouncement by a higher appellate authority or court alters the above situations; (iii) reserve the right to adjust refunds arising, if any, against the demand to the extent of the amount required for granting stay and subject to the provisions of section 245." 18- The CBDT has issued Office Memorandum providing guidelines for stay of demand at the first appellate stage which is again a partial modification of the first circular dated 21/03/1996 and the second circular dated 29/02/2016. Office Memorandum dated 31/07/2017 reads as under:- "F. No. 404/72/93-ITCC (FTS:284146) Government of India Ministry of Finance Department of....

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....Web Managers of irsofficersonline.gov.in and incometaxindia.gov.in for placing on the respective portals. 6. Office of Controller & Auditor General of India (30 copies)." 19- The facts of the case reveal that M. P. Audyogik Kendra Vikas Nigam Limited, Indore and SEZ Indore Ltd. (Writ Petition No.16009/2017) are two separate entity. The return filed by both the companies have been assessed separately. Separate demand have been raised under the Act of 1961. The facts also reveal that the amount paid by the present petition of Rs. 12 Crores has been paid by MPAKVN on 11/12/2014 as Self Assessment Tax against the income declared by the petitioner assessee in its return dated 30/11/2014 which clearly shows that an amount of Rs. 12,70,64,130/- is payable as per its returned income. 20- The assessment in this case has been completed on 28/04/2017 and demand was raised to the tune of Rs. 48,71,99,640/-. The facts also reveal that assessee against the aforesaid demand has not paid a single rupee. So far as payment of Rs. 12 Crores is concerned, the aforesaid amount of Rs. 12 Crores was paid by assessee voluntarily on 11/12/2014 against the income declared in the return of inc....