2016 (5) TMI 358 - HC - Income Tax

Stay application - attachment orders of immovable property as well as movable property - Held that - In the event the Assessing Officer decides the stay application against the Petitioner, then in terms of the CBDT instructions, an application to the next superior authority i.e. Additional Commissioner and/or the Commissioner would be filed by the Petitioner within one week from the date of the Assessing Officer s order, rejecting the stay application being communicated to the Petitioner; The Respondent-Revenue will not act further upon the impugned notice dated 28th March, 2016 being Exh.A1 to A5 till such time as the Petitioner s application is disposed of by the next superior of the Assessing Officer i.e.Additional Commissioner/ Commissioner and for the period of three weeks thereafter. This is only to enable the Petitioner to take recourse to such legal remedies as may be advised; The attachment made by the order dated 28th March, 2016 being Exh.A1 to A5 is not disturbed by this order. They continue. Only the Revenue will not act upon it to take any further action in the manner provided in the Second Schedule to the Act, for the period as mentioned herein above at (ii); The Petitioner will file an undertaking not to dispose of and/or alienate the property, which are subject to attachment by order dated 28th March, 2016 being Exh. A1 to A5 passed under Section 281B of the Act till such time as the above orders of attachments are not set aside and/or varied; It is clarified that the Assessing Officer and/or Commissioner and/or CIT(A) will not be in any manner be influenced by any observations made by us in our order dated 12th April, 2016 or in this order while deciding any application/ appeal before it. Needless to state that the same will be decided upon its own merits; and It is directed that the Assessing Officer and the Additional Commissioner/ Commissioner of Income Tax would decide the Petitioner s application expeditiously i.e. within three weeks of the receipt of the applications. It is further clarified that the time during which the Revenue is unable to act further upon the orders of attachment dated 28th March, 2016 being Exh. A1 to A5, because of pendency of this Petition and disposal of the Petitioner s application within the aforesaid time frame, would be excluded for the purpose of computing the life of the orders of attachment under Section 281B (2) of the Act.

Summary

Issues:
Challenge to orders under Section 281B of the Income Tax Act, 1961 regarding attachment of property; Appeal filed to Commissioner of Income Tax (Appeals) seeking stay of demand; Agreement between parties on the course of action.

Analysis:
The judgment involves a challenge to orders dated 28th March, 2016 issued under Section 281B of the Income Tax Act, 1961, attaching the petitioner's immovable and movable property. The petitioner filed an appeal to the Commissioner of Income Tax (Appeals) seeking a stay of demand following the Assessment Order passed on 31st March, 2016. The petitioner's senior counsel suggested a middle ground where the orders of attachment could continue but not be acted upon further by the Revenue until the stay application is decided. The Revenue agreed to this course with the condition that the attached property should not be alienated during this period.

The court directed that if the Assessing Officer rejects the stay application, the petitioner can apply to the next superior authority within a week. The Revenue was instructed not to take further action on the impugned notices until the petitioner's application is decided and for three weeks thereafter to allow for legal remedies. The attachment orders were to remain undisturbed, with the petitioner undertaking not to dispose of the attached property. The court emphasized that its observations should not influence the decision-making process of the tax authorities. It was also mandated that the application process be expedited, and the time taken for this process would not count towards the life of the attachment orders under Section 281B(2) of the Act.

The judgment was based on the consensus between the parties, and the court did not delve into the issue of whether filing a stay application would restrict the Revenue's powers to act on the attachment orders. The petition was disposed of as per the agreed terms, with no order as to costs, and the parties were instructed to act upon the authenticated copy of the order.