2015 (5) TMI 933 - HC - Income Tax

Stay of demand - Non deduction of tds - treating assesse as assessee in default - stay of the tax and interest demanded rejected - Held that - It would suffice and meet ends of justice if the petitioner is put on terms and directed to pursue its grievance before appellate authority namely, CIT (Appeals)-12 for stay for being adjudicated on merits along with the appeal itself expeditiously, at any rate within an outer limit of two months from the date of receipt of copy of this order and subject to following conditions (a) Petitioner-assessee shall deposit further a sum of ₹ 20 Crores on or before 31.03.2015 before first respondent -Assessing Officer. (b) Petitioner- assessee shall deposit further sum of ₹ 40 Crores before first respondent- Assessing Officer on or before 30.04.2015. (c) For the balance amounts as demanded under demand notice dated 18.02.2015 petitioner shall furnish Bank Guarantee/s in favour of first respondent- Assessing Officer on or before 30.04.2015 kept alive till disposal of the appeal by the CIT (Appeals)-12

Summary

Issues:
1. Quashing of assessment orders and interest levied under the Income Tax Act.
2. Rejection of applications for stay by authorities.
3. Jurisdictional appellate authority's examination of the assessment orders.
4. Directions for the petitioner to pursue grievance before the appellate authority.
5. Setting aside the order passed by CIT (Appeals) and restoring both appeal and application for fresh adjudication.
6. Inherent power of CIT (Appeals) to grant stay under Section 246A of the Act.
7. Protection of revenue's interest by putting the petitioner on terms.
8. Directions issued for the restoration of applications for stay and appeal before CIT (Appeals) with specified conditions.
9. Consequences of the petitioner succeeding in the appeal.
10. Refund of the amount by the revenue if petitioner succeeds in the appeal.

Analysis:

1. The petitioner sought the quashing of assessment orders and interest levied under the Income Tax Act for the assessment years 2013-14 and 2014-15. The first respondent had treated the petitioner as an 'assessee in default' and raised a demand. The petitioner appealed before CIT(Appeals) along with applications for stay, which were rejected. The court refrained from expressing an opinion on the chargeability of tax, directing the petitioner to pursue the matter before the appellate authority.

2. The court noted that the appellate authority was examining the correctness of the assessment orders. The petitioner was directed to pursue its grievance before the CIT (Appeals) without delving into the merits of the rival contentions raised by the parties. The Division Bench's directions in similar circumstances were considered, emphasizing the need for the petitioner to seek redressal through the appellate authority.

3. The court highlighted the inherent power of CIT (Appeals) to grant stay under Section 246A of the Act, emphasizing the need to protect the revenue's interest by putting the petitioner on terms. The impugned order passed by CIT (Appeals) was set aside, and the appeal and application were restored for adjudication afresh by the appellate authority.

4. Detailed directions were issued for the restoration of the applications for stay and appeal before CIT (Appeals), including specific conditions for the petitioner to comply with regarding deposit amounts and furnishing bank guarantees. The order passed by the first respondent was deemed not to survive, allowing parties to work out their remedies before the appellate authority.

5. The judgment outlined the consequences if the petitioner succeeded in the appeal, including the refund of the amount by the revenue with applicable interest. All contentions of both parties on merits were left open, with a clear statement that no opinion was expressed regarding the merits of the claim. The court permitted the respondent's counsel to file a memo of appearance within a specified timeframe.