TaxTMI 
TaxTMI 
2016 (9) TMI 1414
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....de the issue involved in this Writ Petition, the following facts are relevant:- i) The petitioner, for the assessment years 2009-10, 2010-11, and 2011-12, admitted income from capital gains, on the gain so arrived at under the development of a residential project. The Assessing Officer/second respondent, by order, dated 27.06.2012, passed under Section 143 (3) of the Act, disallowed the capital gain computation, and assessed the entire profit under normal computation, apart from levying penalty, by order, dated 31.12.2012. Even before the completion of the assessment for the said three years, the second respondent, by order, dated 06.02.2012, made provisional attachment in respect of the undivided shares of land, remaining unsold, out of the total extent of land as on 08.01.2013, in the property, at Perungudi Village, where the petitioner's Manufacturing Unit was located. The provisional attachment was also intimated to the Sub Registrar, Neelankarai. ii) As against the orders passed by the second respondent, both on merits and levying penalty, the petitioner preferred Appeals before the Commissioner of Income Tax (Appeals -I), viz., the third respondent herein. In the mean....
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.... the petitioner had submitted a letter, dated 30.10.2015, requesting for lifting the attachment. This was followed by two other representations, and similar prayer was also made by the Directors of the petitioner-Company, who had furnished surety, but, no action had been initiated, which has necessitated the petitioner to approach this Court, challenging the order of attachment. 3. The learned counsel appearing for the petitioner contended that the petitioner cannot be treated as a defaulter, and even if the Revenue has challenged the order of ITAT, by filing Tax Case Appeal before this Court, still the petitioner cannot be treated as defaulter. Even assuming that the Revenue succeeds in the Tax Case Appeal filed before this Court, yet, the petitioner cannot be treated as assessee in default, as they are entitled to a notice of 30 days, and if the liability is cleared by then, they are not a defaulter. Therefore, the impugned order of attachment cannot survive after ITAT passed orders, which order has been given effect to by the second respondent. 4. It is further submitted by the learned counsel that for four years, the petitioner is suffering. Apart from that, their Directors a....
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....the Hon'ble High Court of Calcutta, in the case of (Income Tax Officer Vs. Ghanshyamdas Jatia) reported in (1976) 105 ITR 693 (CAL). 7. Heard Mr.R.Sivaraman, the learned counsel appearing for the petitioner, and Mr.T.Ravikumar, learned Senior Standing Counsel (Income Tax Department) appearing for respondents, and perused the materials placed on record. 8. The factual matrix of the case, as set out in the preceding paras, pertaining to the assessment, and, culminating in the order of ITAT, is not disputed by the Revenue. The fact that, giving effect to orders have been passed by the second respondent pursuant to the order passed by ITAT, on 08.09.2015 and 14.09.2015, for all three assessment years, is not disputed. The only defence, putforward by the Revenue for refusing to accede to the prayer sought for by the petitioner for raising the attachment is that, the order passed by ITAT has not become final and conclusive. In this regard, reference was made to Section 225 (3) of the Act, and Rule 12 of second schedule to the Act. 9. As noticed above, sub-section 3 of Section 225 uses the expressions final and conclusive. It has to be seen, as to how the expressions should be ....
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..... As did the High Court, when a Writ Petition challenging the dismissal of Revision Petition was filed, and on Appeal to the Hon'ble Supreme Court, the Hon'ble Supreme Court reversed the decision of the High Court, and held that the Tax Recovery Officer could not have confirmed the sale, when the demands on account of tax, for the recovery of which certificates were issued, had admittedly ceased to exist. 12. It was further held in Sri Mohan Wahi's case (supra) that the term ''reduced'' in Section 225 (3) of the Act would include a case, where the demand, consequent upon an appeal, or any proceeding, under the Act has been reduced to nil also. Further, it was pointed out that the combined effect of Section 225 (3) of the Act and Rules 56 and 63 of schedule II is that, before an order confirming the sale is actually passed by the Tax Recovery Officer, the demand of tax consequent upon an order made in appeal, or other proceedings under the Act had been reduced to nil, the Tax Recovery Officer is obliged to cancel the certificate, and, as soon as the certificate is cancelled, he shall have no power to make an order confirming the sale. Though this interpr....
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.... note of in Sri Lakshmi Brick Industries (supra), and therefore, the ground raised by the Revenue, is not a ground to distinguish the decision in Sri Lakshmi Brick Industries (supra). 15. In the considered view of this Court, the decision in Sri Lakshmi Brick Industries (supra) would apply with full force to the case of the petitioner herein. 16. The learned Senior Standing Counsel for the Revenue has referred to the decision in Ghanshyamdas Jatia's case, and submitted that, unless the outstanding demand is reduced by an order in Appeal, or other proceeding, and such order has become final and conclusive, the question of lifting the attachment does not arise, and the position would be that, the certificate proceeding already started under the original assessment in such case remains in abeyance, subject to the provisions of Section 225 (4) abiding with the last order, as it attains finality and conclusiveness. In the said decision, the matter was pending before the Tribunal, and the Court observed that the matter had not attained the character of final and conclusive order, and therefore, it did not have any effect on the certificate proceeding, which remained in abeyance pen....