Madras High Court
M/S. Tamil Nadu State Marketing ... vs Additional / Joint / Deputy / on 26 April, 2022
W.P.No.10123 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition No.10123 of 2022
and W.M.P.Nos.9813 and 9814 of 2022
M/s. Tamil Nadu State Marketing Corporation Ltd.,
4th Floor, CMDA Tower-II,
Gandhi Irwin Bridge Road,
Egmore, Chennai - 600 008.
Rep. by its Managing Director
Shri. Dr.L.Subramanian …. Petitioner
-Vs-
1. Additional / Joint / Deputy /
Asst Commissioner of Income Tax / Income Tax Officer,
National Faceless Assessment Centre,
Delhi.
2. The Deputy Commissioner of Income Tax
Corporate Circle-3(1)
121, Mahatma Gandhi Road,
Chennai - 600 034. …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for
the issuance of a Writ of Certiorari, to call for the records of the petitioner on the
file of the first respondent and quash the impugned Assessment Order in DIN :
ITBA/AST/S/147/2021-22/1042162310(1), dated 30.03.2022 for the Assessment
Year 2016-17 passed by the first respondent.
For Petitioner : Mr.R.Vijayaraghavan
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W.P.No.10123 of 2022
for Mr.Subbaraya Aiyar Padmanabhan
For Respondents : Mrs.Hema Muralikrishnan
Senior Standing counsel
ORDER
The prayer sought for herein is for a writ of certiorari, to call for the
records of the petitioner on the file of the first respondent and quash the
impugned Assessment Order in DIN : ITBA/AST/S/147/2021-22 /
1042162310(1), dated 30.03.2022 for the Assessment Year 2016-17 passed by
the first respondent.
2. The petitioner is a State Marketing Corporation Ltd., under which Indian
made foreign liquor are being sold through retail vending shop run throughout the
State by the petitioner corporation.
3. In this regard, the petitioner's account was assessed by the respondents
under the provisions of the Income Tax Act, 1961 (in short "the Act") and
ultimately the final assessment also was over for the Assessment Year 2016-17.
4. However, subsequently, in order to reopen the same under Section 147
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W.P.No.10123 of 2022
of the Act, the Revenue issued a notice under Section 148 of the Act. After receipt
of the notice under Section 148, as per the GKN Driveshafts (India) Limited Vs.
Income Tax Officer and others reported in (2003) 259 ITR 19 (SC), procedure
held by the Hon'ble Supreme Court, the petitioner after filing the return has
sought for the reasons for such reopening and the reasons were also furnished by
the Revenue to the petitioner. Thereafter against the said reasons furnished by the
Revenue objections were raised by the petitioner assessee.
5. In this context, it is the case of the petitioner that, even though objections
have been raised by the petitioner, it has not been properly disposed or disposed
in proper perspective, as the petitioner has paid huge amount by way of VAT to
the State authorities, therefore, that amount has to be given exemption not to be
added as an income.
6. In this context, Mr.R.Vijayaraghavan, learned counsel appearing for the
petitioner assessee has brought to the notice of this Court about the earlier writ
petition filed by the very same assessee before this Court in W.P.No.21995 of
2021, where also when a question was raised as to the maintainability of the writ
petition filed therein in the similar circumstances in respect of other Assessment
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W.P.No.10123 of 2022
Year, with regard to the maintainability, arguments were advanced on behalf of
the assessee and that was considered by the Division Bench and ultimately by
order, dated 21.03.2022, by considering the factual matrix as well as the legal
position in this regard, including the law laid down by the Hon'ble Supreme Court
in GKN Driveshafts (India) Limited Vs. Income Tax Officer and others
reported in (2003) 259 ITR 19 (SC), the First Division Bench, by order, dated
21.03.2022, has come to the conclusion that the writ petition was not
maintainable before this Court and therefore, the assessee was relegated in that
writ petition to go before the Appellate Authority to file a regular quantum appeal.
7. But the only consolation that was given to the petitioner assessee in that
writ petition in para 19 of the order, dated 21.03.2022 was that, the appeal can be
filed by the assessee within three weeks period and in view of the peculiar facts
and circumstances projected in that case, no coercive steps shall be taken against
the petitioner assessee till the disposal of the appeal by the Appellate Authority.
8. Therefore, Mr.R.Vijayaraghavan, learned counsel appearing for the
petitioner canvass the point that, if at all this Court comes to a conclusion that,
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W.P.No.10123 of 2022
the present writ petition is not maintainable before this Court and this Court come
forward to relegate the party to go before the Appellate Authority to file a regular
quantum appeal, the said protection given in para 19 of the order, dated
21.03.2022 can also be given and extended to the present case also in respect of
the assessee for the particular Assessment Year.
9. However, Mrs.Hema Muralikrishnan, learned Senior standing counsel
appearing for the respondents would point out that, while granting the said relief
of interim protection till the disposal of the appeal to be filed by the assessee in
that case in para 19 of the order referred to above, in the last line, the following
line has been stated "this order shall not be taken as a precedent, as it is passed
after taking note of the peculiar facts of the present case only".
10. Citing the last three lines, learned Senior standing counsel would point
out that, in view of the peculiar facts and circumstances, that was projected and
considered by the First Division Bench in the said case, that relief was given to
the petitioner assessee, therefore, the same relief, for which the petitioner is not
entitled to in this case.
11. She would also submit that, if at all the petitioner wants to go before
the Appellate Authority, if ultimately this Court consider that this writ petition is
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W.P.No.10123 of 2022
not maintainable, it is open to him to go before the Appellate Authority within a
time frame that may be stipulated by this Court. At the best only till he
approaches the Appellate Authority, such an interim protection can be given,
however that interim protection cannot be extended the moment he files appeal
before the Appellate Authority, where it is open to the petitioner assessee to seek
for any interim relief, according to the choice of the petitioner assessee and if
such an interim relief is sought for, it is for the Appellate Authority to decide the
same on merits, she contended.
12. She would also submit that, if at all any stay petition has to be
submitted, that has to be submitted before the Assessment Authority under
Section 220(6) of the Act, therefore, if that application is filed, after filing the
appeal before the Appellate Authority, that can be very well directed to be taken
into account and to be disposed of on merits under the said provisions of the Act.
Therefore at this juncture no such interim protection till the disposal of the appeal
to be filed by the petitioner can be granted to the petitioner assessee as has been
granted in para 19 of the said order in said case of the same assessee.
13. I have considered the said submissions made by both sides and have
perused the materials placed before this Court.
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W.P.No.10123 of 2022
14. I have gone through the said Judgment of the First Division Bench of
this Court, dated 21.03.2022 made in W.P.No.21995 of 2021.
15. The fact of the case is almost similar to that of the said case, therefore
the learned counsel seeks the same relief.
16. But the one difference is that, where the First Bench also has very
consciously stated that, the said order shall not be taken as a precedent because
of the peculiar facts and circumstances, that relief was given to the petitioner till
the disposal of the appeal.
17. Here in the case in hand, even though reasons have been given and
objections have been made, that has been disposed of, however, whether it is
properly disposed of or not based on the earlier Supreme Court orders and also
on the facts of the case in view of the legal position, it is again a matter of merit to
be gone into by the Appellate Authority. Therefore before whom, it is open to the
petitioner to file an Appeal by way of regular quantum appeal.
18. However, for getting an interim order of stay of the impugned
assessment order, till the disposal of the appeal is concerned, that cannot be
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W.P.No.10123 of 2022
granted at this juncture by this Court, because it is for either the Assessing
Authority or the Appellate Authority to take a call when such an application for
stay is filed, after filing the appeal by assessee.
19. That is the reason why the legislature thought it fit to have a provision
like 220(6) of the Act, under which an application for stay can be filed by the
assessee by stating the reasons and with the discretion of the assessing authority,
of course by imposing certain condition depending upon the facts and
circumstances of the case, the stay petition can be disposed by the Assessing
Authority, even as against that order to be passed by the Assessing Authority,
appeal / Revision can further be filed.
20. Therefore the relief sought for by the petitioner cannot be granted in
this writ petition, as this Court feels that the writ petition is not maintainable in
this Court at this juncture, invoking the extraordinary jurisdiction of this Court
under Article 226 of the Constitution.
21. Hence, the writ petition on the ground of maintainability is liable to be
rejected. At the same time some interim protection, at least till the assessee
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W.P.No.10123 of 2022
approach the Appellate Authority to file an appeal can be given with a further
liberty to the petitioner to move stay petition either before the Assessing Authority
or before the Appellate Authority as the case may be.
22. In that view of the matter, this Court is inclined to dispose of this writ
petition with the following orders :
(i) That the writ petition is not maintainable as there has
been an alternative efficacious appeal remedy available to the
petitioner, which the petitioner has admittedly not exhausted.
(ii) Therefore the petitioner is relegated to go before the
Appellate Authority, within a period of four weeks from the date
of receipt of a copy of this order to file a regular quantum
appeal.
(iii) After filing the appeal, it is open to the petitioner to
file a petition for stay before the Assessing Authority under
Section 220(6) of the Act.
(iv) If at all any interim relief is sought for by the
petitioner before he approaches the Assessing Authority after
filing the appeal, that kind of interim relief also can be asked for
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W.P.No.10123 of 2022
by the petitioner assessee before the Appellate Authority, and
that can be taken up and decided as a preliminary issue before
taking up the appeal on merits.
(v) The appeal also can be taken up and decided on
merits as early as possible.
(vi) Therefore, till four weeks time from the date of
receipt of a copy of this order, no coercive step shall be taken by
the respondent Revenue, pursuant to the impugned order.
23. With these orders and direction, this writ petition is dismissed as not
maintainable. No costs. Consequently, connected miscellaneous petitions are also
dismissed.
26.04.2022
Index : Yes/No
Speaking order / Non-speaking order
tsvn
To
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W.P.No.10123 of 2022
1. The Additional / Joint / Deputy /
Asst Commissioner of Income Tax / Income Tax Officer,
National Faceless Assessment Centre,
Delhi.
2. The Deputy Commissioner of Income Tax
Corporate Circle-3(1)
121, Mahatma Gandhi Road,
Chennai - 600 034.
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W.P.No.10123 of 2022
R. SURESH KUMAR, J.
tsvn
W.P.No.10123 of
26.04.2022
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