Calcutta High Court (Appellete Side)
Jankalyan Vinimay Private ... vs Deputy Commissioner Of Income Tax on 7 February, 2023
Item No.2, 3, & 4.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
HEARD ON: 07.02.2023
DELIVERED ON: 07.02.2023
CORAM:
THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
F.M.A. 1160 of 2022
With
I.A. No.CAN 1 of 2022
With
I.A. No.CAN 2 of 2022
Jankalyan Vinimay Private Limited
Vs.
Deputy Commissioner of Income Tax, Circle-1(1), Kolkata & Ors.
And
F.M.A. 1161 of 2022
With
I.A. No.CAN 1 of 2022
With
I.A. No.CAN 2 of 2022
Jankalyan Vinimay Private Limited
Vs.
Deputy Commissioner of Income Tax, Circle-1(1), Kolkata & Ors.
And
F.M.A. 1164 of 2022
2
With
I.A. No.CAN 1 of 2022
With
I.A. No.CAN 2 of 2022
Jankalyan Vinimay Private Limited
Vs.
Deputy Commissioner of Income Tax, Circle-1(1), Kolkata & Ors.
Appearance:-
Mrs. Manju Agarwal,
Mr. B. Manot ... for the appellant.
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, all the appeals are disposed of by this common judgment
and order.
2. These intra-Court appeals have been filed by the writ
petitioner against the orders passed by the learned Single Bench
in W.P.A. No.11284 of 2021, W.P.A. No.11281 of 2021 and W.P.A.
No.11272 of 2021 respectively dated 27th July, 2021. All the writ
petitions were filed by the assessee with varied prayers and in
effect questioning the assessment orders passed under Section
143(3) of the Income Tax Act, 1961 (for short, "the Act").
Though such varied prayers were sought for in the writ
petitions, during the course of submissions before the learned
Writ Court, the learned Advocate appearing for the appellant /
writ petitioner confined the arguments with the prayer to
dispose of the appellant's application filed under Section 220
(6) of the Act for granting an order of interim stay of the
assessments, which according to the appellant, are high-pitched
assessments till the appeal filed by the assessee before the
Commissioner of Income Tax (Appeals) are disposed of.
3. The learned Single Bench has dismissed the writ petitions
by the impugned orders on the ground that the writ petitions
were filed belated whereas the stay applications were filed
before the assessing officer during September, 2018. Aggrieved
by such order, the appellant is before this Court by way of
these appeals.
4. There is a delay of 166 days in filing the appeals. We
find sufficient cause has been shown for not preferring the
appeals within the period of limitation. Hence, the delay in
filing the appeals are condoned.
5. We have heard Mrs. Manju Agarwal, learned counsel appearing
for the appellant and Mr. Smarajit Roychowdhury, learned counsel
appearing for the respondents.
6. Admittedly, the assessments are high-pitched assessments
having completed in the year 2017-2018. The assessments relate
to the assessment years 2011-12, 2012-13 and 2016-17. Well
within the period of limitation, the appellant had filed the
statutory appeals before the Commissioner of Income Tax
(Appeals) and the appeals are pending since 2018. It is not
clear as to why the appeal petitions have not been disposed of
in spite of passage of time and very recently, the assessing
officer has rejected the stay application buy communication
dated 8th December, 2022.
7. Be that as it may, this Court is of the view that during
the pendency of the appeals, if the assessment orders are to be
given effect to, it may cause prejudice. Normally, while
granting an order of interim stay, condition would be imposed on
the assessee to pay part of the assessed tax. However, there
have been cases where such payment / deposit has not been
ordered when the assessments are unduly high-pitched.
8. In the instant case, since the appeals were filed in 2018
and the stay applications filed before the Deputy Commissioner
of Income Tax during the year 2018 followed by subsequent
reminders, were rejected only on 8th December, 2022 and the
assessments orders were not given effect to till date, we are of
the view that the appeals filed before the Commissioner of
Income Tax (Appeals) could be disposed of at an early date and
until then, the respondents/department should not take any
coercive action against the appellant / assessee for recovery of
the income tax, which has been assessed.
9. Identical view was taken by this Court in the case of Great
Barter Private Limited Vs. Assistant Commissioner of Income Tax,
Circle-1(1), Kolkata & Ors in MAT 244 of 2020 and MAT 245 of
2020 dated 6th December, 2022. The operative portion of the
order reads as follows:-
"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.
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.
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.
10. In the light of the above discussion, these appeals are
allowed and the orders passed in the writ petitions are set
aside with a direction to keep the recovery proceedings
initiated by the assessing officer in abeyance with a further
direction to the Commissioner of Income Tax (Appeals) to dispose
of the appeal petitions filed by the assessee 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.
11. We make it clear that we have not gone into the merits of
the matters and it will be well open to the assessee to canvass
all factual and legal issues in the pending appeals before the
Commissioner of Income Tax (Appeals).
12. There shall be no order as to costs.
13. 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)
