2019 (3) TMI 289 - HC - Income Tax

Stay of demand u/s 220(6) - recovery proceedings - Writ for stay without filing appeal - violation of principles of natural justice - more than 100 crores addition on account of Unaccounted sales of unaccounted production of dairy products - Disallowance u/s 35(2AB) - deduction for expenditure incurred on scientific research and development - All bank account attached - HELD THAT - At least nine hearings have been granted to the assessee prior to framing of the order of assessment thus not inclined to accept the submissions advanced by the petitioner in relation to the violation of principles of natural justice. An application for stay of demand in terms of section 220(6) states that an Assessing Officer may, at his discretion, consider a petition for stay only upon the assessee presenting an appeal to the first appellate authority under Section 246 of the Act. In the present case, admittedly, an appeal is yet to be filed. Learned counsel for the petitioner however, states on instructions that the petitioner proposes to challenge the impugned order of assessment forthwith and has not done so till date only on account of the pendency of this writ petition. This Court has proposed a via media as far as recovery is concerned, bearing in mind the interests of both parties. As suggested that the petitioner remit a sum of ₹ 5,00,00,000/- to the Income tax Department upon receipt of which the assessing officer will lift the attachments on three bank accounts of the petitioner namely, the accounts in the ICICI, HDFC and SBI. The petitioner is permitted to file an appeal within one week from today and if the lime limit as imposed is complied with, the Commissioner of Income Tax (Appeals) will take the appeal on file without reference to limitation. Further orders in regard to stay or otherwise, of recovery of the disputed demand, will be considered by the assessing officer upon proof that the appeal has been filed and the amount of ₹ 5,00,00,000/- remitted.

Summary

Issues:
Challenging order of assessment under Section 143(3) of the Income Tax Act, 1961 for Assessment Year 2016-17.

Analysis:
1. The petitioner challenges the addition made under 'unaccounted sales of unaccounted production of dairy products' without a show cause notice and proper consideration of submissions.
2. Disallowance under section 35(2AB) for expenditure on scientific research and development is contested, claiming entitlement to the deduction without the required statutory exercise by the Assessing Authority.
3. The petitioner's request for stay of demand was rejected, leading to attachment of bank accounts, impacting business operations significantly.
4. The respondent argues that the order of the Assessing Officer is correct, advising the petitioner to pursue appellate remedy for relief. The statutory appeal under Section 220(6) requires challenging the assessment through appeal before seeking a stay.
5. The court notes multiple hearings granted to the assessee before the assessment order was framed, rejecting claims of violation of natural justice principles.
6. The court allows the petitioner to file a statutory appeal within a week, directing the Commissioner of Income Tax (Appeals) to consider it without reference to limitation and dispose it lawfully.
7. A proposal is made for the petitioner to remit a specific amount to the Income Tax Department, leading to lifting of bank account attachments and consideration of stay of recovery upon filing the appeal and remittance.
8. The final order requires the petitioner to remit the specified amount, file an appeal within the given timeline, and the Assessing Officer to consider the stay petition upon proof of appeal filing and remittance, following Circulars issued by Central Board of Direct Taxes.

This comprehensive analysis covers the challenges raised, the court's observations, the respondent's stance, the court's decision, and the proposed resolution for the petitioner's compliance and relief.