Calcutta High Court (Appellete Side)
Great Barter Private Limited vs Assistant Commissioner Of Income ... on 6 December, 2022
Item No.4 & 5.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 06.12.2022
DELIVERED ON:06.12.2022
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
M.A.T. 244 of 2020
With
I.A. No.CAN 1 of 2020 (Old CAN 2510 of 2020)
With
I.A. No.CAN 2 of 2020 (Old CAN 2511 of 2020)
Great Barter Private Limited
Vs.
Assistant Commissioner of Income Tax, Circle-1(1), Kolkata & Ors.
And
M.A.T. 245 of 2020
With
I.A. No.CAN 1 of 2020 (Old CAN 2504 of 2020)
With
I.A. No.CAN 2 of 2020 (Old CAN 2506 of 2020)
Great Barter Private Limited
Vs.
Assistant Commissioner of Income Tax, Circle-1(1), Kolkata & Ors.
Appearance:-
Mrs. Manju Agarwal,
Ms. Anju Manot ... for the appellant.
2
Mr. Smarjit Roychowdhury .... for the respondents.
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
1. Since the issues involved in these appeals are common and
germane, both the appeals are disposed of by this common
judgment and order. For the sake of convenience, we take up MAT
244 of 2020 for discussion.
Re: I.A. No.CAN 1 of 2020 (Old CAN 2510 of 2020)
2. This is an application to condone the delay of 469 days in
filing the instant appeal.
3. We have heard Mrs. Manju Agarwal, learned counsel appearing
for the appellant and Mr. Smarajit Roychowdhury, learned counsel
appearing for the respondents.
4. We are satisfied with the reasons assigned in the affidavit
filed in support of the application. Accordingly, the delay in
filing the instant appeal is condoned.
5. The applications for condonation of delay being I.A. No.CAN
1 of 2020 (Old CAN 2510 of 2020) and I.A. No.CAN 1 of 2020 (Old
CAN 2504 of 2020) are allowed. There shall be no order as to
costs.
Re: MAT 244 of 2020
6. This intra Court appeals have been filed both against a
common order dated 26th September, 2018 passed in W.P. No.4717(W)
of 2018 and W.P. No.4719 of 2018. There was one other writ
petition, which was also dismissed in the said order, i.e.
W.P.4720 of 2018.
7. The appellant had filed a separate appeal, which appears to
have been dismissed for default and the appellant has filed an
application for restoration of such appeal.
8. The challenge in the writ petition was to an order passed
by the assessing officer, namely, the Assistant Commissioner of
Income Tax, Central Circle-I(1), Kolkata by which the said
assessing officer disposed of the said petition by directing the
appellant to deposit 20% of the tax as determined in the order
of assessment. Various grounds have been urged by the appellant
in the said petition filed before the assessing officer as well
as in the writ petition. The grounds, which have been raised by
the appellant, have been noted by the learned Single Bench.
However, the learned Single Bench had dismissed the writ
petitions on the ground that the appellant had not pleaded
hardship in the said application and therefore, no fault can be
attributed to the order of the assessing officer, which in the
opinion of the appellant, was devoid of reasons.
9. Admittedly, the assessments are high pitched assessments
and when such high pitched assessments are appealed against and
an order of stay is sought for either before the assessing
officer by filing an application under Section 220(6) of the
Income Tax Act, orders are passed by the assessing officer
either keeping the notice of recovery in abeyance and not
treating the assessee as an assessee in default till the appeal
is disposed of.
10. There are yet another set of cases where the assessing
officer for reasons to be recorded imposes certain conditions as
a condition for grant of stay. The appellant's case falls under
the second category where the assessing officer has directed 20%
of the demand to be paid by the assessee for being entitled to
grant of stay.
11. It is an undisputed fact that as against the impugned
assessment order, appeal has been filed before the Commissioner
of Income Tax (Appeals), second respondent on 25 th January, 2018.
It is not clear as to why the appeal is pending before the
Commissioner (Appeals) for more than two years. Identical
issues have come up for consideration before various High Courts
and we would refer to two of the decisions of the High Court of
Delhi, namely, Valvoline Cummins Limited - Vs. - Deputy
Commissioner of Income Tax, Dfelhi & Ors. reported at 2008 (103)
DRJ 567 (DB) and Soul Vs. Deputy Commissioner of Income Tax
reported at (2010) 323 ITR 305.
12. In both these cases, the Hon'ble Division Bench of the High
Court of Delhi has considered high pitched assessments and has
also taken note of the instruction issued by the CBDT and have
held that when the assessments are unreasonably high pitched,
the notices of recovery should remain stayed till the disposal
of the appeal by the first appellate authority. In cases on
hand, the return filed by the assessee was a loss return.
However, the assessing officer has assessed the income and it is
definitely a high pitched assessment. That apart, we find that
the appeal was filed before the Commissioner of Income Tax
(Appeals) well within the period of limitation and is pending
since 25th January, 2018.
13. That apart, we are informed by the learned Advocate
appearing for the appellant that till date the notice of demand
has not been enforced on the assessee. Thus, considering the
peculiar facts and circumstances of the case, we are of the view
that the appeal itself should be directed to be disposed of by
the Commissioner of Income Tax (Appeals) at an early date and
until then, recovery proceedings should be kept in abeyance.
14. In the light of the above, the appeals are allowed and the
order passed in the writ petitions is set aside with a direction
to keep the recovery notices issued by the assessing officer
kept in abeyance and direct the Commissioner of Income Tax
(Appeals), the appellate authority, to disposed of the appeals
on merits and in accordance with law after affording an
opportunity of personal hearing to the authorised representative
of the assessee as expeditiously as possible preferably within a
period of 45 days from the date of receipt of the server copy of
this judgment and order.
15. We make it clear that we have not gone into the merits of
the matter and it will be well open to the assessee to canvass
all factual and legal issues before the Commissioner of Income
Tax (Appeals).
16. There shall be no order as to costs.
17. Urgent photostat certified copy of this order, if applied
for, be furnished to the parties expeditiously upon compliance
of all legal formalities.
(T.S. SIVAGNANAM, J)
I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C)
