Madras High Court
Govindarajan Praveen Kumar vs The Principal Commissioner Of ... on 4 March, 2021
W.P.(MD)Nos.4655, 4662 & 4657 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)Nos.4655, 4657 and 4662 of 2021
and
W.M.P.(MD)Nos.3767, 3769, 3771, 3776 and 3774 of 2021
Govindarajan Praveen Kumar
S/o.Govindarajan,
No.13, Revathi Nagar,
Koranadu,
Mayiladuthurai-609 001.
Nagapattinam District. : Petitioner in W.P.(MD)No.4655 of 2021
Palanivelu Gopinathan
Proprietor of S.R.P.Agencies,
3/21, East Street,
Thiruchampalli,
Tranquebar Taluk-609 309,
Nagapattinam District. : Petitioner in W.P.(MD)No.4657 of 2021
Palanivelu Nanthakumar
No.3/19, Keela Street,
Mudikandanallur,
Tharangambadi Taluk,
Nagapattinam District-609 309. : Petitioner in W.P.(MD)No.4662 of2021
-Vs-
1.The Principal Commissioner of Income Tax,
No.44, Williams Road,
Cantonment,
Tiruchirapalli-620 001.
1/8
https://www.mhc.tn.gov.in/judis/
W.P.(MD)Nos.4655, 4662 & 4657 of 2021
2.The Commissioner of Income Tax (Appeal),
No.44, Williams Road,
Cantonment,
Tiruchirapalli-620 001. ... Respondents in all W.Ps.
3.The Income Tax Officer,
Circle(OSD)-1, Trichy,
Income Tax Building,
No.44, Williams Road, Cantonment,
Tiruchirapalli-620 001. ... 3rd Respondent
in W.P.(MD)No.4655 of 2021
4.The Income Tax Officer,
Ward 2, No.81, Salt Road,
Nagapattinam-611 007. ... 3rd Respondent
in W.P.(MD)No.4657 of 2021
5.The Income Tax Officer,
Ward 2, First Floor,
No.31, Krishnasamy Road,
Gandhinagar,
Kumbakonam-612 001. ... 3rd Respondent
in W.P.(MD)No.4662 of 2021
Prayer in W.P.(MD)No.4655 of 2021: Petition filed under Article 226 of
the Constitution of India to issue a Writ of Certiorarified Mandamus, to
call for the records of the first respondent in C.No.
6140(SOD)/PCIT/TRY-1/2019-20/1772, dated 25.02.2020 and quash the
same as illegal, arbitrary and against the principles of natural justice and
further direct the second respondent to consider and dispose the appeal
filed by the petitioner in Ack.No.288846901080120 on 08.01.2020 on
merits within a time frame as stipulated by this Court.
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W.P.(MD)Nos.4655, 4662 & 4657 of 2021
Prayer in W.P.(MD)No.4657 of 2021: Petition filed under Article 226 of
the Constitution of India to issue a Writ of Certiorarified Mandamus, to
call for the records of the first respondent in C.No.
6140(SOD)/PCIT/TRY-1/2019-20/1775, dated 25.02.2020 and quash the
same as illegal, arbitrary and against the principles of natural justice and
further direct the second respondent to consider the stay petition sent by
RPAD on 09.03.2020 and pass orders on merits and in accordance with
law.
Prayer in W.P.(MD)No.4622 of 2021: Petition filed under Article 226 of
the Constitution of India to issue a Writ of Certiorarified Mandamus, to
call for the records of the first respondent in C.No.
6140(SOD)/PCIT/TRY-1/2019-20/1773, dated 25.02.2020 and quash the
same as illegal, arbitrary and against the principles of natural justice and
further direct the second respondent to consider the stay petition sent by
RPAD on 09.03.2020 and pass orders on merits and in accordance with
law.
For Petitioner : Mr.K.Soundararajan
For Respondents : Mr.N.Dilipkumar
(in all W.Ps.)
COMMON ORDER
The petitioners herein are assessees with the third respondent.
All these three petitions pertain to the assessment year 2017-18.
The petitioners are dealers trading in commodities such as petroleum
products, edible oil and liquefied gas. The petitioner purchased from
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W.P.(MD)Nos.4655, 4662 & 4657 of 2021
their respective principals and sold the same to their customers.
The petitioners were subjected to scrutiny assessments. Finally, the
assessing authority passed orders based on best Judgment assessment
under Section 144 of IT Act, 1961. Aggrieved by the same, the
petitioners filed appeals before the Commissioner of Income Tax
(Appeal), Tiruchirappalli. The petitioners had also applied for interim
relief before the appellate authority. In the meanwhile, the petitioners
also moved the Principal Commissioner of Income Tax, Tiruchirappalli
for grant of stay. The first respondent, by the impugned orders, directed
the assessees to pay 20% of the disputed demand. It was further directed
that subject to the said payment, the assessee's petition for stay of balance
disputed demand would be considered on merits. Aggrieved by the
same, these Writ Petitions have been filed.
2.The learned Standing Counsel took notice at the admission stage
itself and stated that since only a pure question of law is involved in all
these cases, he is ready to get along with the main writ petitions itself.
3.The learned counsel appearing for the petitioners submitted that
the petitioners have been depositing their daily collections in their
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W.P.(MD)Nos.4655, 4662 & 4657 of 2021
respective bank accounts. It is not as if, the entire deposit can be treated
as the petitioner's income. The petitioners have to necessarily pay their
respective principals for the purchases made. Unfortunately, the
assessing authority had taken note of the credits alone and declined to
consider the debits. The petitioners who are registered dealers under
TNVAT Act, 2006, have filed their respective returns also. Without
considering any of these aspects, the assessing authority had
mechanically levied income tax on the entire bank deposits. According
to the petitioners's counsel, this was clearly a case of over pitched
assessment. Therefore, the petitioners filed an application for interim
stay. The first respondent ought to have applied the standard parameters,
namely, financial stringency, prima facie case and balance of
convenience. He would point out that the first respondent had
mechanically applied the circular and insisted on payment of 20% of the
disputed tax. The learned counsel placed heavy reliance on the order
dated 12.02.2020 made in W.P.(MD)No.3393 of 2020. The learned
Judge, in the said order, had followed the earlier order dated 13.02.2019
in W.P.No.3849 of 2019 (Mrs.Kannammal Vs. Income Tax Officer).
He also placed reliance on the Judgment reported in (2015) 64
taxmann.com 339 (N.Jegatheesan Vs. Deputy Commissioner of
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W.P.(MD)Nos.4655, 4662 & 4657 of 2021
Income-tax, Non Corporate Circle-2, Madurai).
4.As rightly pointed out by the learned standing counsel for the
respondents, the assessee who suffered an adverse order, is entitled to file
a petition under Section 220(6) of Income Tax Act for calling upon the
assessing authority not to treat him as assessee in default. Only if the
order of the assessing officer under Section 220(6) of the Act is not in
favour of the assessee, the assessee has the option of moving the
Principal Commissioner of Income Tax, by virtue of Office
Memorandum bearing F.No.404/72/93-ITCC, dated 29.02.2016. In other
words, the assessee cannot maintain such an application in the very first
instance before the Principal Commissioner of Income Tax. In the case
on hand, after moving the appellate authority, the assessee has straight
away filed a stay petition before the first respondent. Such an application
for interim relief could not have been moved before the first respondent
in the first instance. It was clearly not maintainable. Therefore, on this
sole ground, the orders impugned in these writ petitions are quashed.
5.It is stated by the petitioner's counsel that they have already filed
stay petitions in the pending appeal. Therefore, even while allowing
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W.P.(MD)Nos.4655, 4662 & 4657 of 2021
these writ petitions, I grant liberty to the petitioner to file fresh stay
petitions in the pending appeals. The appellate authority shall dispose of
the same on merits and in accordance with law within a period of eight
weeks after the fresh stay petitions are filed.
6.The petitioner's counsel states that the petitioner will file such
stay petitions within a period of three weeks from the date of receipt of a
copy of this order. Till the disposal of the stay petitions by the appellate
authority, recovery under the assessment orders shall be kept in
abeyance.
7.These Writ Petitions are disposed of accordingly. No costs.
Consequently, connected miscellaneous petitions are closed.
04.03.2021
Index : Yes/No
Internet : Yes/No
rmi
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)Nos.4655, 4662 & 4657 of 2021
G.R.SWAMINATHAN, J.
rmi
To
1.The Principal Commissioner of Income Tax,
No.44, Williams Road,
Cantonment,
Tiruchirapalli-620 001.
2.The Commissioner of Income Tax (Appeal),
No.44, Williams Road,
Cantonment,
Tiruchirapalli-620 001.
3.The Income Tax Officer,
Circle(OSD)-1, Trichy,
Income Tax Building,
No.44, Williams Road, Cantonment,
Tiruchirapalli-620 001.
W.P.(MD)Nos.4655, 4657 and 4662 of 2021
and
W.M.P.(MD)Nos.3767, 3769, 3771, 3776 and 3774 of 2021
04.03.2021
https://www.mhc.tn.gov.in/judis/
