2014 (6) TMI 115 - HC - Income Tax

Attachment order passed by ACIT u/s 226(3) of the Act Rejection of stay application on the day it was filed - Whether the AO, at the time of passing the garnishee order and rejecting the stay application on February 17, 2014, was aware of the stay application filed by the petitioner on that day Held that - Section 220(3) requires an application for extension of time to pay the tax demanded or for permission to pay the same in instalments to be filed before the expiry of the due date for payment - the petitioners filed the applications u/s 220(3) before the AO on February 14, 2014, which satisfies the sub-section - February 14, 2014, happened to be a Friday, the next working day was only February 17, 2014, and it was on this day that the AO rejected the applications - he issued the garnishee order u/s 226(3) to the Citi Bank. This is a case in which technically no fault could be found with the AO, there was an element of impropriety in his action in issuing the garnishee order u/s 226(3) on February 17, 2014, the very day on which he rejected the stay application filed by the petitioner u/s 220(3) - It is expected of him, having rejected the stay application, to wait for a reasonable period before he takes coercive steps to recover the amounts since the petitioner, faced with an order rejecting the stay application, may need some time to make arrangements to pay the entire tax demand or come up with proposals for paying the same in instalments the AO is a prospector of the Revenue and he is no doubt expected to protect the interests of the Revenue zealously, but such zeal has to be tempered with the rules of fair play and an anxiety to ensure that an opportunity is not lost to the assessee to make alternative arrangements for clearing the tax dues, once the stay applications filed u/s 220(3) are rejected - The AO had acted in arbitrariness, since the stay applications filed by the petitioners are pending before the Tribunal, the AO is directed to reverse the amount recovered from the bank account in Citi Bank and credit the same in the account of the petitioner Decided in favour of Assessee.

Summary

Issues Involved:
1. Validity of the attachment order under section 226(3) of the Income-tax Act, 1961.
2. Appropriateness of the Assessing Officer's actions in rejecting stay applications and issuing garnishee orders.
3. The procedural propriety in handling stay applications and recovery proceedings.

Detailed Analysis:

1. Validity of the Attachment Order under Section 226(3) of the Income-tax Act, 1961:
The primary issue in both writ petitions was the attachment order passed by the Additional Commissioner of Income-tax under section 226(3) of the Income-tax Act, 1961, for the assessment year 2009-10. The petitioners, Sony Mobile Communications (India) Pvt. Ltd. and Sony India Pvt. Ltd., challenged the garnishee orders issued to Citi Bank, which resulted in the recovery of Rs. 43.87 crores from Sony Mobile's bank account.

The court noted that section 156 of the Act provides for the service of the notice of demand, and section 220(1) prescribes a 30-day period for payment of the tax demand. The Assessing Officer is empowered under section 220(3) to extend the time for payment or allow payment by installments. The court observed that the petitioners had filed applications under section 220(3) before the expiry of the due date, which satisfied the statutory requirement.

2. Appropriateness of the Assessing Officer's Actions in Rejecting Stay Applications and Issuing Garnishee Orders:
The court examined whether the Assessing Officer acted appropriately in rejecting the stay applications and issuing garnishee orders on the same day. The petitioners argued that the Assessing Officer showed undue haste and did not wait for the outcome of the stay applications filed before the Tribunal. The court acknowledged that technically no fault could be found with the Assessing Officer's actions, but it highlighted an element of impropriety in issuing the garnishee order on the same day the stay application was rejected.

The court emphasized that the Assessing Officer should have afforded the petitioners a reasonable period to make arrangements for payment or propose installment plans after rejecting the stay applications. The court found that the Assessing Officer's actions exhibited arbitrariness and lacked fair play.

3. Procedural Propriety in Handling Stay Applications and Recovery Proceedings:
The court highlighted the procedural aspects of handling stay applications and recovery proceedings. It noted that the petitioners had filed appeals and stay applications before the Income-tax Appellate Tribunal, and these were pending. The court directed the Tribunal to hear the stay applications on a specified date and pass appropriate orders after hearing both sides.

The court issued several directions to ensure procedural propriety:
- The Assessing Officer was directed to reverse the amount recovered from the bank account and credit it back to the petitioner's account.
- The petitioner was required to maintain a balance of Rs. 43.87 crores in the said bank account.
- The Tribunal was instructed to hear the stay applications promptly and pass orders.
- The respondents were restrained from taking any coercive steps to recover the tax until the Tribunal disposed of the stay applications.
- The Tribunal was urged to dispose of the appeals expeditiously.

Conclusion:
The court disposed of the writ petitions by directing the reversal of the recovered amount, maintaining the bank balance, and ensuring prompt hearing and disposal of stay applications by the Tribunal. The court emphasized the need for fair play and procedural propriety in handling tax recovery proceedings. No order as to costs was made, and the parties were directed to abide by the Tribunal's orders.