2018 (2) TMI 110 - HC - Income Tax

Notice u/s 226(3)(iii) - attachment orders - Held that - This Court would be fully justified in issuing appropriate direction to re-credit the amount to the petitioner s bank accounts. However, since it is represented that the petitioner is already in the process of filing Appeal to the ITAT, this Court is inclined to grant liberty to the petitioner to seek for such relief before the ITAT. It is further represented that, apart from the above two bank accounts, there is third account maintained by the petitioner, which is EEFC account, bearing No.50200025012377, at HDFC Bank, T.Nagar Branch, Chennai, which is yet to be attached by the respondent, and it is stated that the respondent is present in the petitioner s bank to attach the said account, while this Writ Petition is being argued before this Court. Respondent is restrained from attaching the petitioner s EEFC Account No.50200025012377, at HDFC Bank, T.Nagar Branch, Chennai, till the petitioner s approaches the ITAT, challenging the order passed by the Commissioner of Income Tax (Appeals)-3 Chennai, dated 27.10.2017, by way of Appeal. The learned Senior Standing Counsel for the Revenue expresses her apprehension that the petitioner/assessee may indefinetly delay in filing the Appeal, and therefore, states that, the Court should fix time limit for filing such Appeal before the ITAT, for, via. this order, the respondent is injuncted from attaching the petitioner s EEFC A/c No.50200025012377, and this benefit should not last too long. Revenue need not have any such apprehension since already steps have been taken by the assessee, in filing the Appeal. The petitioner/assessee shall file Appeal before the ITAT within a period of four weeks from the date of receipt of this order.

Summary

Issues:
1. Entitlement to receive amounts collected through the bank by filing an appeal before ITAT.
2. Correctness of attaching bank accounts before the expiry of the limitation period for filing an appeal.
3. Interpretation of the expressions "final" and "conclusive" in the context of tax recovery and attachment orders.
4. Jurisdiction of the Tax Recovery Officer and the effect of ITAT's decision on the defaulter status.
5. Binding nature of the Court's decision on authorities and tribunals.
6. Restraint on attaching the petitioner's EEFC account pending the ITAT appeal.

Issue 1: Entitlement to receive amounts collected through the bank by filing an appeal before ITAT:
The petitioner filed a Writ Petition seeking to restrain the respondent from recovering a balance amount following the dismissal of an appeal by the Commissioner of Income Tax. The petitioner argued that the recovery through the bank accounts was premature as the period for filing an appeal before the ITAT had not expired. Citing precedents, the Court noted that the petitioner would be entitled to reclaim the money until a decision by the ITAT. The Court emphasized the importance of due process and the right to be heard before initiating recovery actions.

Issue 2: Correctness of attaching bank accounts before the expiry of the limitation period for filing an appeal:
The Court found the attachment of the petitioner's bank accounts before the expiration of the appeal filing deadline to be procedurally incorrect. It highlighted the necessity of providing the petitioner with an opportunity for a personal hearing before initiating recovery actions through the bank. The Court emphasized that the Tax Recovery Officer must follow due process and issue a certificate declaring the petitioner as a defaulter before attaching properties.

Issue 3: Interpretation of the expressions "final" and "conclusive" in the context of tax recovery and attachment orders:
The Court analyzed the interpretation of the terms "final" and "conclusive" in relation to tax recovery proceedings. It referred to previous judgments and emphasized that the attachment of properties should not continue if the ITAT's decision results in a nil tax liability or a refund. The Court emphasized the importance of following statutory provisions and providing clarity on the status of the defaulter before initiating recovery actions.

Issue 4: Jurisdiction of the Tax Recovery Officer and the effect of ITAT's decision on the defaulter status:
The Court discussed the jurisdiction of the Tax Recovery Officer and the impact of the ITAT's decision on the defaulter status. It highlighted that the Tax Recovery Officer must issue a certificate declaring the petitioner as a defaulter before attaching properties. The Court emphasized that the ITAT's decision resulting in a nil tax liability should prevent the petitioner from being treated as a defaulter.

Issue 5: Binding nature of the Court's decision on authorities and tribunals:
The Court underscored the binding nature of its decisions on authorities and tribunals, citing the principle that the law declared by the highest court in the State is binding on subordinate authorities. It emphasized that authorities cannot ignore such decisions when initiating or deciding on proceedings.

Issue 6: Restraint on attaching the petitioner's EEFC account pending the ITAT appeal:
The Court restrained the respondent from attaching the petitioner's EEFC account pending the ITAT appeal challenging the Commissioner's order. It set a deadline for filing the appeal to ensure timely resolution of the matter and prevent undue delays. The Court directed the respondent to lift the attachment order and return the original documents given as surety to the petitioner.