Bombay High Court
Chavara Trust Cmi Ashram Through ... vs Union Of India Through Assistant ... on 14 January, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
1 wp 3972.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
996 WRIT PETITION NO. 3972 OF 2020
CHAVARA TRUST CMI ASHRAM THROUGH ITS SECRETARY
SEBI THOMAS PARAKKAL
VERSUS
UNION OF INDIA THROUGH ASSISTANT COMMISSIONER OF
INCOME TAX (EXEMPTIONS), AURANGABAD
...
Advocate for Petitioner: Mr. Shah Subodh P.
Standing Counsel for Respondent/Sole:
Mr. Alok M. Sharma
...
CORAM: S. V. GANGAPURWALA &
SHRIKANT D. KULKARNI, JJ.
DATE: 14th JANUARY, 2021
PER COURT:
1. Mr. Shah, learned Counsel for the petitioner
submits that the petitioner is challenging the
assessment order so also order directing
pre-deposit.
2. Mr. Shah, learned Counsel submits that the
petitioner by way of abundant caution has also
filed an appeal against the order of assessment,
however that would not be an impediment to
entertain the writ under Article 226 of the
Constitution. The assessment order is passed in
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breach of the principles of natural justice. The
learned Counsel relies on the judgment of the
Division Bench of this Court in case of Vodafone
India Limited Vs. Union of India and others
reported in (2014) 265 CTR 42. The learned Counsel
further submits that directing petitioner to
deposit 20% of the amount as pre-deposit is too
harsh, hardship would be caused to the petitioner.
The learned Counsel submits that the appellate
authority ought to have considered that the
assessment order is without affording proper
opportunity to the petitioner, only 24 hours time
was provided to the petitioner to reply the show
cause notice. As no proper opportunity has been
given, the pre-deposit ought to have been waived.
The learned Counsel further submits that it is not
the thumb rule that the appellate authority has to
order 20% pre-deposit. The discretion vests with
the appellate authority to direct deposit of a
lessor amount or in deserving cases may not insist
for pre-deposit. The learned Counsel relies on the
judgment of the Apex Court in case of Benera
3 wp 3972.2020
Valves Ltd. and others Vs. Commissioner of Central
Excise and another reported in (2006) 13 SCC 347.
3. Mr. Sharma, learned Counsel for the Revenue
submits that the petitioner did not co-operate
during the assessment proceedings. The appellate
authority has considered the said aspect while
passing the order directing the petitioner to
deposit 20% amount as pre-deposit. The non
compliance during the course of assessment
proceedings does not qualify the petitioner for
non payment of 20% of the demand rates.
4. Mr. Shah, the learned Counsel submits that
after the appeal was filed, the respondent has
recovered some amount. The amount of refund that
was entitled to has been adjusted by the Revenue
in the demand claim in the assessment order,
subject matter of the present petition.
5. As far as challenge to the assessment order
is concerned, we are not inclined to exercise our
writ jurisdiction under Article 226 of the
4 wp 3972.2020
Constitution as the petitioner has already availed
the remedy of appeal. The petitioner may prosecute
its appeal before the appellate authority in
accordance with law.
6. As far as the order of pre-deposit is
concerned, the petitioner tried to contend and
demonstrate that the petitioner was not given
proper opportunity in as much as sufficient time
was not given to the petitioner to place on record
its say and the documents to be relied upon and
the assessment order was passed in haste. Of
course, it is the contention of the petitioner
which the appellate authority will have to
consider as per the record and the material placed
before it.
7. It appears that the notice was issued to the
petitioner on 15.12.2019. It is case of the
petitioner that the same was received on
16.12.2019 and the information was to be furnished
on 17.12.2019. The assessment order was passed on
22.12.2019.
5 wp 3972.2020
8. Considering the aforesaid factual matrix of
the case, we pass the following order.
9. The order of the appellate authority
directing the petitioner to deposit 20% amount as
pre-deposit is modified. The petitioner shall
deposit 10% of its liability amount pursuant to
the assessment as pre-deposit.
10. Writ Petition is accordingly disposed of. No
costs.
[SHRIKANT D. KULKARNI, J.] [S. V. GANGAPURWALA, J.]
marathe
