2014 (7) TMI 1174 - HC - Income Tax

CESS non inclusion in computing the compounding - Held that - In the present case, the petitioner points out that another dealer, who was faced with the very same situation had filed an appeal at the stage of interim order,and filed a Writ Petition before this Court, in which a learned single Judge of this Court had interfered with the conditional order finding that there is substance in the case put forth by the said dealer, by Ext.P24. Subsequently, the appeal itself was allowed by Ext.P24. It may not be proper for this Court to hold on the issue raised in the appeal. But still going by the afore cited facts, it is only proper that the appeal itself be disposed of and the recovery be kept in abeyance till such appeal is disposed of. It is so directed.

Summary

Issues:
1. Imposition of condition to pay 30% of tax demanded on re-opening of assessments.
2. Inclusion of CESS in computing the compounding for a dealer in gold and jewellery.
3. Discretionary interference by the Appellate Authority.
4. Comparison with a similar case where a single Judge interfered with a conditional order.

Analysis:

1. The petitioner, a dealer in gold and jewellery, challenged the condition imposed to pay 30% of the tax demanded upon re-opening of assessments. The petitioner had availed the benefit of compounding for the subject year and paid the compounded tax as directed by the Assessing Officer. However, the re-opening was done due to the CESS paid for the earlier year not being included in the computation of amounts for compounding. The petitioner contended that CESS should not be included in compounding calculations, leaving this issue for appeal consideration.

2. Another dealer in a similar situation had filed an appeal and a Writ Petition, where a learned single Judge interfered with the conditional order and subsequently allowed the appeal. Considering these facts, the Court decided to dispose of the petitioner's appeal and ordered the recovery to be kept in abeyance until the appeal is resolved. The Court noted the precedent set by the previous case and directed accordingly, allowing the Writ Petition.

3. The Court acknowledged that it would not typically interfere with the discretion exercised by the Appellate Authority. However, in light of the circumstances and the previous case's outcome, the Court found it appropriate to intervene and ensure a fair resolution for the petitioner. By referencing the previous case where a single Judge had interfered and allowed the appeal, the Court justified its decision to grant relief to the petitioner and directed the disposal of the appeal while suspending the recovery process.

In conclusion, the judgment highlighted the issues of imposing conditions on tax payments upon assessment re-opening, the inclusion of CESS in compounding calculations for dealers in gold and jewellery, the discretionary interference by the Appellate Authority, and the comparison with a similar case where relief was granted. The Court's decision to allow the Writ Petition and keep the recovery in abeyance pending appeal resolution demonstrated a fair and just approach to addressing the petitioner's grievances.