2022 (6) TMI 86 - HC - Income Tax

Stay of demand - petitioner suo moto deposited a sum which was equivalent to 20% of demand created, in terms of Office Memorandum - HELD THAT - As relying upon the Office Memorandum dated 29.02.2016 31.07.2017, considering Section 220(6) considering the fair admission on part of Standing Counsel, and considering the fact that the amount of Rs 2,52,531, equivalent to 20% of the demand, was already refunded by department on 01.06.2020, this court deems it appropriate to direct the respondent to refund the excess amount of Rs 10,10,119, being 80% of the demand that is already recovered from the petitioner. The respondents are entitled to keep 20% of the demand, i.e. Rs 2,52,530 in terms of Office Memorandum dated 29.02.2016 and 31.07.2017, until the appeal of petitioner pending before CIT (Appeal) is decided. The refund of Rs. 10,10,119 be made to the petitioner within a period of 30 days from the pronouncement of this judgment, failing which respondent will be liable to pay interest as applicable. Upon delay of the payment, interest as applicable will be recovered from the erring officer/respondent.

Summary

Issues:
1. Coercive recovery without disposing of stay application and considering petitioner's deposit.
2. Refund of excess amount recovered before appeal disposal.

Analysis:
1. The petitioner, a senior citizen, filed an income tax return for the assessment year 2017-18, which was scrutinized resulting in high additions to the assessed income. The Assessing Officer created a substantial demand, against which the petitioner deposited 20% of the amount and filed a stay application along with an appeal. However, the Assessing Officer initiated coercive recovery without disposing of the stay application, leading to the recovery of the entire demanded amount from the petitioner's bank account in an ex parte manner. The petitioner challenged this action through a writ petition, citing the illegal approach of the respondents, contrary to their circulars and provisions of the law, and against previous court orders.

2. The respondent, in response, contended that the deposited amount equivalent to 20% of the demand was refunded to the petitioner after the recovery of the entire demanded sum. During the hearing, the respondent's counsel acknowledged the impropriety of recovering over 20% of the demand before the appeal's disposal and agreed that the petitioner should be refunded the excess amount. Considering the Office Memorandum, Section 220(6) of the Income Tax Act, 1961, and the respondent's admission, the court directed the respondent to refund the excess recovered amount to the petitioner. The court ordered a refund of Rs. 10,10,119, being 80% of the demand already recovered, within 30 days of the judgment. Failure to comply would result in the respondent being liable to pay applicable interest, recoverable from the responsible officer.

In conclusion, the court disposed of the writ petition, ordering the refund of the excess amount recovered from the petitioner and maintaining 20% of the demand until the appeal is decided. All pending applications were also disposed of as part of the judgment.