Udayan Large Sized Multipurpose ... vs The Income Tax Officer
2022 Latest Caselaw 6406 Cal

Item No.6.

              IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE
                            HEARD ON: 08.09.2022

                         DELIVERED ON:08.09.2022
                                CORAM:

                THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
                                     AND
             THE HON'BLE MR. JUSTICE SUPRATIM BHATTACHARYA
                                M.A.T. No.445 of 2020

         Udayan Large Sized Multipurpose Co-op Society Ltd. & Anr.
                                   Vs.
            The Income Tax Officer, Ward-3(4)/Balurghat & Ors.

Appearance:-
Mr. Vinay Shraff
Mr. Himangshu Kr. Ray,
Ms. Sangita Paul                                   ... for the appellants.

Mr. Vipul Kundalia                    .....     for the Union of India.


                                JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

1. This intra-Court appeal at the instance of the writ

petitioners is directed against the order dated 21st April, 2020

passed in W.P. No.5350(W) of 2020, which was disposed of by an

interim order along with two other writ petitions.

2. The appellants, Udayan Large Sized Multipurpose Co-op

Society Ltd., aggrieved by the action of the first respondent,

the Income Tax Officer, Ward 3(4)/Balurghat, Ministry of

Finance, Department of Revenue, Dakshin Dinajpur. Though the

challenge in the writ petition was to an assessment order passed

by the first respondent, the grievance was that the appellants

could not have been treated as an assessee in default and the

bank account of the appellants could not have been attached and

the amount, which was quantified in the assessment order could

not have been recovered since the appellants have filed an

appeal before the second respondent, namely, the Commissioner of

Income Tax (Appeals), Jalpaiguri along with a stay application

and the stay application is yet to be disposed of.

3. It is the submission of Mr. Shraff that in the given facts

and circumstances, the appellants /assessee could not have been

treated as an assesseee in default. In this regard, reliance

has been placed on the decisions in the case of Sanjay Kumar

Sahu Vs. Income-Tax Officer reported at [2013] 40

taxmann.com 242 (Madhya Pradesh), Khandelwal Laboratories

(P.) Ltd. Vs. Deputy Commissioner of Income-tax 6(3)(2),

Mumbai reported at [2016] 68 taxmann.com 171 (Bombay) and

other judgments on the said point.

4. The learned Single Bench by the impugned order had directed

the lifting of the attachment of the appellants' bank account.

However, the appellants were not satisfied with the said relief

and seeks for refund of the money, which was recovered from the

appellants' bank account and therefore, they are before us by

way of this appeal.

5. At the time when the writ petition was disposed of, none

appeared for the department as we are informed that the writ

petition was heard through video conferencing during the

lockdown period.

6. We have directed Mr. Vipul Kundalia, learned senior

standing counsel appearing for the Income Tax Department to

accept notice on behalf of the respondents and the Ministry /

Department shall regularise his engagement.

7. So far as the prayer sought for by the appellants to refund

the amount, which was recovered by way of back attachment, such

prayer cannot be considered at this juncture as the statutory

appeal filed by the appellants as against the order of

assessment is now pending before the second respondent, namely,

the Commissioner of Income Tax (Appeals), Jalpaiguri and there

is also a stay application pending. Further, we note that the

assessment order was passed on 19th December, 2019, the writ

petition was disposed of on 21st April, 2020 and the present

appeal was filed before this Court on 11th May, 2020 and after

removal of the defects, which were directed to be done by order

dated 5th June, 2020, the appeal is listed for admission for the

first time today. Thus, by efflux of time, the question of now

issuing a positive direction for refund of the amount recovered

from the appellants by way of bank attachment cannot be granted

at this juncture. However, we are conscious of the fact that

the appellate remedy available to the appellants/assessee before

the second respondent is an effective and efficacious remedy

where the assessee would be entitled to urge all factual and

legal issues. In fact, the assessee can also seek for

appropriate direction from the first appellate authority for

refund of the amount, which was recovered based on the

submission, which have been made before us. Therefore, ends of

justice would be met, if the following directions are issued:-

8. Accordingly, the appeal stands disposed of by directing the

second respondent to take up the appeal filed by the appellants

as agaisnt the assessment order, which is stated to have been

filed on 18th January, 2020 and decide the same on merits and in

accordance with law after affording an opportunity of personal

hearing to the appellants or their authorised representative.

9. In the event the Commissioner of Income Tax (Appeals),

Jalpaiguri cannot immediately dispose of the appeal, the stay

application can be taken up for consideration in which we grant

liberty to the appellants to seek for appropriate direction for

refund of the amount, which was recovered pursuant to the bank

attachment. In any event, since the matter is a long pending

matter, it would be advisable for the first appellate authority

to dispose of the appeal petition not later than 28 th November,

2022.

10. With the above directions, the appeal stands disposed of.

11. No order as to costs.

12. 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,

(SUPRATIM BHATTACHARYA, J.)

NAREN/PALLAB(AR.C)