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TMI Blog2013 (1) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenging the assessment orders is admittedly pending before the appellate forum. Thus when appeal on substantial plea is pending, the writ petition raising certain legal pleas based on a letter is totally untenable and misconceived. What the petitioner failed to achieve directly is trying to achieve indirectly. The petitioner's attempt before this Court lacks bona fide and the writ petition is filed raising irrelevant legal plea only to delay the payment of tax and interest. The writ petition, therefore, lacks bona fide and amounts to abuse of process of Court. No case is made out to approach this Court under Article 226 of the Constitution - writ petition filed with mala fide intention with an object of delaying recovery of tax is condemned - against assessee. - W.P.No.29285 of 2012 - - - Dated:- 8-1-2013 - MR R. SUDHAKAR J. For Petitioner: Mr. K. Ravi For Respondent: Mr. T. Pramod Kumar Chopda ORDER The subject matter of the writ petition is the letter dated 15.10.2012 issued by the Assistant Commissioner of Income Tax, Company Circle I(2), Coimbatore, which reads as follows:- "ACIT/CC-I(2)/Cbe/AADCS0672G Dated: 15.10.2012 To The Principal O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner of Income Tax (Appeals) considered the issue on remand and, by an order dated 14.12.2011 in I.T.A.Nos.412, 413 414 of 2010-11, decided the issue against the petitioner and held that the expenditure incurred on replacement of machinery is a capital expenditure and allowed depreciation thereon as per the provisions of the Income Tax Act (for short, "the Act"). The assessing officer on his part, by order dated 25.7.2012 in respect of assessment years 1993-94 1994-95 and by order dated 26.7.2012 in respect of assessment year 1998-99, re-worked the assessment by treating the replacement of machinery as capital expenditure and allowed depreciation thereon and determined the income. He also demanded the balance tax payable including interest under Sections 234-B and 220(2) of the Act. The petitioner claims that he has preferred appeals in I.T.A.Nos.414/Mds/2012, 415/Mds/2012 and 416/Mds/2012 before the Income Tax Appellate Tribunal and the same are pending. Insofar as the assessment years 2005-06 and 2006-07 are concerned, it is stated that the Income Tax Appellate Tribunal, vide order dated 13.7.2010 and 25.3.2010 respectively, set aside the order of the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing authority in the assessment order to charge interest is to be specific and clear and the assessee must be made to know that the assessing officer after applying its mind has ordered charging of interest. We do not find that the judgment in Ranchi Club Ltd., has either been expressly overruled or any different view has been taken in Anjum M.H. Ghaswala's case. We also do not find force in the argument advanced by Shri Mahajan that even if assessment order or computation sheets do not provide for interest, since interest is mandatory, it can be charged in the demand notice, which according to Shri Mahajan is signed by the Assessing Officer. Even if any provision of law is mandatory and provides for charging of tax or interest, the view taken in Ranchi Club Ltd., is that such charge by the assessing officer should be specific and clear and assessee must be made to know that the assessing officer has applied its mind and has ordered charging of interest. The mandatory nature of charging of interest and the actual charging of interest by application of mind and the mention of the proviso of law under which such interest is charged are two different things. In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the above two decisions is repelled by Mr.Pramod Kumar Chopda, learned counsel for the respondent department, on the basis of counter affidavit, by contending that in the assessment order passed by the assessing officer for the year 2005-06, (internal page 8) at page 46 of the typedset, there is a demand amounting to Rs.2,45,56,972/- including the interest under Sections 234-B, 234-C and 234-D of the Act followed by the notice under Section 156 of the Act at page 54 of the same typedset. Similarly, in respect of the assessment order for the year 2006-07, (internal page 8) at page 55 of the typedset, there is a demand amounting to Rs.4,15,34,650/- including the interest under Sections 234-B and 234-C of the Act followed by the notice under Section 156 of the Act at page 63 of the same typedset. Similarly, the assessment orders for the years 1993-94, 1994-95 and 1998-98 which have not been produced by the petitioner deliberately or otherwise will also contain the details of interest under Section 234-B and 220(2) of the Act. Therefore, the learned counsel contended that if the original assessment orders are produced, it will establish that interest had been actually demanded at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclined to go into the merits of the contentions raised, as the substantial issue challenging the assessment orders is admittedly pending before the appellate forum. The consequences of the order that will be passed in appeals will flow automatically. The petitioner cannot be heard to argue on merits on the issue relating to the demand of interest under Section 234-B and 234-C of the Act, when admittedly the appeal on substantial plea is pending before the appellate forum. Whether the petitioner has raised such a plea before the appellate forum is also not evident, as appeal memorandums have not been filed. The petitioner has not chosen to file copies of appeals said to have been filed before the appellate forum for reasons best known to the petitioner. In any event, if the petitioner failed to pursue the said plea before the appellate forum, petitioner cannot be allowed to make such a plea before this Court at this juncture. In any event, the petitioner cannot ride two horses on the same issue. Further, when appeal on substantial plea is pending, the writ petition raising certain legal pleas based on a letter is totally untenable and misconceived. The petitioner is trying to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempt before this Court lacks bona fide and the writ petition is filed raising irrelevant legal plea only to delay the payment of tax and interest. The writ petition, therefore, lacks bona fide and amounts to abuse of process of Court. (vii) One another plea taken in the writ petition is that the Board's Circular No.530 dated 6.3.89 has not been strictly followed. Admittedly, it is a case of exercise of discretion under Section 220(6) by the assessing officer to grant the benefit, pending appeal. It is not the case of the petitioner that any application is pending before the assessing officer on this plea and, therefore, the question of considering the Circular No.530 dated 6.3.89 does not arise. The petitioner has to work out its remedy in the appeals. No case is made out to approach this Court under Article 226 of the Constitution. Insofar as the present case is concerned, raising the said ground is totally irrelevant to the case and intended to confuse the Court so as to get some interim order and consequently stall the recovery. Hence, the writ petition filed with mala fide intention with an object of delaying recovery of tax is condemned. The writ petition is filed in a c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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