2015 (7) TMI 556 - HC - Income Tax

Stay of demand - disallowances under Section 40(a)(ia) for the alleged violation of Section 194A, 194H and Section 194J - Held that - It shall be the duty of the assessing authority to collect every demand which has not fallen due or has been stayed by a Court or Tribunal etc. It appears in the case Income Tax Officer, Ward-II(3), Coimbatore v. M/s Veerakeralam Primary Agricultural Cooperative Credit Society, Coimbatore (2015 (7) TMI 557 - ITAT CHENNAI) while dealing with a similar issue, placing reliance on the judgment Commissioner of Income Tax v. Jatari Momin Vikas Cooperative Credit Society Ltd. 2014 (2) TMI 28 - GUJARAT HIGH COURT brings the case of the petitioner under the guidelines-C(i)(a) for staying demand, which says that if the demand in dispute relates to issues that have been decided in assessee's favour by an appellate authority or Court earlier, the demand will be stayed. While the issue appears to be clear, this Court does not find any justification why the assessing authority has not considered the guidelines under the Instruction No.1914 dated 2.12.93. Moreover, it is well settled legal position that all authorities, civil, criminal and judicial, coming within the territory of the High Court, shall act in the aid of the High Court. While so, the assessing authority is bound by the order passed by the jurisdictional Tribunal without taking any stand that the Tribunal or High Courts of other States are taking a different view. Be that as it may, when the appeal has been filed by the petitioner before the appellate authority along with stay petition, keeping in mind that any further observation would have a cascading effect on the pending appeal of the petitioner, with all hesitation, is restraining to express anything on the merits, therefore, in the fitness of things, this Court, accepting the request made by the learned counsel for the petitioner for a direction to dispose of the main appeal itself, as the petitioner had received the notice dated 4.2.2015, hereby directs the second respondent-appellate authority to dispose of the appeal. Needless to mention that till then, the first respondent shall not proceed with the recovery, as it is well settled law that during the pendency of the appeal before the appellate authority, the department is not entitled to initiate the recovery proceedings. Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the impugned assessment order dated 10.03.2015.
2. Legitimacy of the disallowance under Section 40(a)(ia) for violations of Sections 194A, 194H, and 194J.
3. Applicability of Section 80P(4) to the petitioner as a primary agricultural credit society.
4. Procedural propriety in handling the stay petition by the assessing authority.
5. Compliance with Central Board of Direct Taxes (CBDT) instructions regarding stay of demand.

Detailed Analysis:

1. Validity of the Impugned Assessment Order:
The petitioner challenged the assessment order dated 10.03.2015, which resulted in a tax demand of Rs. 59,79,550 for the assessment year 2009-10. The petitioner, a primary agricultural cooperative credit society, claimed deductions under Section 80P, which were denied on the grounds that the petitioner did not qualify as an 'agricultural credit society' as per the Explanation to Section 80P(4).

2. Legitimacy of Disallowances under Section 40(a)(ia):
The assessment order included disallowances amounting to Rs. 91,92,883 under Section 40(a)(ia) for alleged violations of Section 194A, and additional disallowances of Rs. 3,20,686 and Rs. 27,500 for violations of Sections 194H and 194J respectively. The petitioner argued that being a primary agricultural credit society, it falls under the exclusion of Section 194A(viia), making these disallowances unfounded.

3. Applicability of Section 80P(4):
The petitioner contended that the issue of whether it qualifies for deductions under Section 80P had been decided in its favor by the jurisdictional Income Tax Appellate Tribunal (ITAT) in a similar case (I.T.A.No.197/Mds/2013). The Tribunal had ruled that Section 80P(4) does not apply to credit cooperative societies that are not cooperative banks. This precedent was cited to support the petitioner's claim for deductions under Section 80P.

4. Procedural Propriety in Handling the Stay Petition:
The petitioner filed a stay petition under Section 220(6) of the Income Tax Act, requesting to be treated as 'not in default' during the pendency of the appeal. However, the assessing authority directed the petitioner to pay 50% of the demand as a preliminary measure before considering the stay petition. The petitioner argued that this approach violated CBDT instructions and was contrary to the precedent set by the jurisdictional Tribunal.

5. Compliance with CBDT Instructions:
The petitioner highlighted that according to CBDT's Instruction No.1914 dated 2.12.93, stay of recovery should be granted if the issue in dispute has been decided in favor of the assessee by a superior authority. The petitioner argued that the assessing authority failed to follow these guidelines, despite the Tribunal's decision in a similar case favoring the petitioner.

Conclusion:
The Court directed the second respondent-appellate authority to dispose of the appeal on its merits within three months. It emphasized that during the pendency of the appeal, the department should not initiate recovery proceedings, aligning with the established legal principle that recovery actions should be stayed while an appeal is pending. The writ petition was disposed of with this directive, and the related miscellaneous petition was closed without costs.