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2015 (10) TMI 1903 - HC - Income TaxStay of demand - writ petition - Registration under section 12A denied - Assessing Officer assessed the total income of the petitioner as ₹ 48,22,54,670/- and raised a demand of ₹ 20,41,52,870/- in scrutiny assessment - stay petition submitted - Held that - From the facts and contentions noted hereinabove, it is apparent that none of the exceptions laid down by in the case of Commissioner of Income Tax v. Chhabil Dass Agarwal, (2013 (8) TMI 458 - SUPREME COURT) interference by the High Court in exercise of powers under Article 226 of the Constitution have been made out in the facts of the present case. It is not the case of the petitioner that the impugned order has been passed in breach of the principles of natural justice or that the statutory authority has not acted in accordance with the provisions of the Act or has acted in defiance of the fundamental principles of judicial procedure. Under the circumstances, when there is an efficacious alternative statutory remedy available to the petitioner and the petitioner has already availed of the same, in the opinion of this court, no case has been made out for entertaining a writ petition against the assessment order framed under section 143(3) of the Act. Besides, the question as to whether the activities carried out by the petitioner fall within the ambit of the proviso to section 2(15) of the Act, is a mixed question of fact and law and, hence, when there is a statutory remedy available and which has been resorted to by the petitioner under the provisions of the Act, this court would be loathe to interfere in exercise of its extraordinary powers under Article 226 of the Constitution. In the opinion of this court, the decision of the Supreme Court in the case of Commissioner of Income Tax v. Chhabil Dass Agarwal, (2013 (8) TMI 458 - SUPREME COURT) referred to hereinabove would be squarely applicable to the facts of the present case and hence, this court is not inclined to entertain the petition qua the relief challenging the impugned assessment order. Whether the petitioner is entitled to any relief under section 220(6) of the Act - Held that - On a plain reading of the orders passed by the respondents No.1 to 3 under section 220(6) of the Act, it is manifest that such orders have been passed in a mechanical and perfunctory manner without application of mind to the relevant factors for considering the question of grant of stay and as such cannot be sustained. Ordinarily, this court while setting aside the order passed under section 220(6) of the Act, would remand the matter to the concerned authority for the purpose of re-deciding the application under section 220(6) taking into consideration the relevant factors. However, having heard the learned counsel for the respective parties on the merits of the case as well as on the question of grant of stay, the court is of the view that the petitioner has made out a prima facie case for grant of stay of the demand, subject to reasonable conditions. Under the circumstances, instead of remanding the matter to the respondent authorities, the court is of the view that the ends of justice would be met if the petitioner is directed to pay an amount equal to ten per cent of the demand raised by the respondents. Having regard to the facts and circumstances of the case and the quantum of the demand raised against the petitioner, the court is of the view that the Commissioner (Appeals) should be asked to dispose of the appeal within a stipulated time frame. In the light of the above discussion, the petition partly succeeds and is, accordingly allowed to the following extent. It is ordered that the petitioner shall not be treated as an assessee in default as contemplated under section 220(6) of the Act, subject to the petitioner depositing ten per cent of the amount stated in the demand notice within a period of four weeks from today. The Commissioner (Appeals) shall dispose of the appeal preferred by the petitioner under section 246 of the Act within a period of four months from the date of receipt of a copy of this judgment.
Issues Involved:
1. Maintainability of Writ Petition challenging the assessment order under Section 143(3) of the Income Tax Act, 1961. 2. Entitlement to Relief under Section 220(6) of the Income Tax Act regarding the stay of demand. Detailed Analysis: 1. Maintainability of Writ Petition: - Petitioner's Argument: The petitioner, an urban development authority, argued that the assessment order dated 24.3.2015, which assessed its total income as Rs. 48,22,54,670 and raised a demand of Rs. 20,41,52,870, was contrary to the provisions of Section 2(15) of the Income Tax Act. The petitioner contended that its statutory activities should not be considered as trade, commerce, or business. They cited decisions from various High Courts, including the Gujarat High Court in the case of Director of Income Tax (Exemption) v. Sabarmati Ashram Gaushala Trust, to support their claim that their activities were of general public utility and not aimed at profit-making. - Respondent's Argument: The respondents argued that the writ petition was not maintainable as the petitioner had already availed of the statutory remedy of appeal before the Commissioner (Appeals). They cited the Supreme Court decision in Commissioner of Income Tax v. Chhabil Dass Agarwal, which emphasized that when a statutory forum is available, a writ petition should not be entertained. - Court's Decision: The court held that none of the exceptions laid down by the Supreme Court for entertaining a writ petition were made out in this case. The petitioner had an efficacious alternative statutory remedy, which they had already availed. The court noted that the question of whether the petitioner's activities fell within the ambit of the proviso to Section 2(15) was a mixed question of fact and law, best decided by the appellate authority. Hence, the court was not inclined to entertain the writ petition challenging the assessment order. 2. Entitlement to Relief under Section 220(6): - Petitioner's Argument: The petitioner sought relief under Section 220(6) to stay the demand raised by the assessment order. They contended that the orders passed by the respondents directing them to pay the demand in installments were non-speaking and did not consider the relevant factors such as prima facie case, balance of convenience, and conflicting decisions of different High Courts. They argued that the respondents had not applied their minds to the guidelines laid down by the CBDT Circular No.1914 dated 2.12.1993. - Respondent's Argument: The respondents argued that the orders were in consonance with the CBDT guidelines and that no coercive action had been taken against the petitioner. They contended that the petitioner had been granted installment facilities and that the orders were reasonable. - Court's Decision: The court found that the orders passed by the respondents under Section 220(6) were mechanical and lacked reasoning. The court emphasized that the Assessing Officer is vested with discretionary powers, which must be exercised reasonably and with consideration of all relevant factors. The court noted that the CBDT circular required a speaking order, which was not provided by the respondents. Given the conflicting decisions of different High Courts and the petitioner's status as a statutory authority, the court held that the petitioner had made out a prima facie case for the grant of stay. Instead of remanding the matter, the court directed the petitioner to deposit ten per cent of the demand and ordered the Commissioner (Appeals) to dispose of the appeal within four months. Conclusion: The court allowed the petition to the extent of granting relief under Section 220(6), directing the petitioner to deposit ten per cent of the demand within four weeks and instructing the Commissioner (Appeals) to dispose of the appeal within four months. The petition challenging the assessment order was not entertained due to the availability of an alternative statutory remedy.
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