9911796707
TMI Blog2018 (5) TMI 1769X X X X Extracts X X X X X X X X Extracts X X X X ..... stayed the recovery of the balance amount to be recovered by the Department from the assessee for the assessment year 2009-10, yet the Department has recovered the outstanding demand by way of adjustment against the refund for Assessment year 2008-09. It has been further pleaded that this Tribunal had also directed in the order dated 20.12.2017 to refund ₹ 50 lacs recovered to the debtor of the assessee, which have been wrongly recovered by the Department. Hence, it has been pleaded that the action of the Ld. ACIT in this respect is totally wrong illegal and further that she may be directed to refund the amount recovered illegally from the assessee in violation of order dated 20.12.2017. 2. Before further proceeding, we would like to discuss here a few facts relevant to the adjudication of the Misc. Petition. The assessee filed the Stay Application No.18/Chd/2017 relevant to ITA No. 1560/Chd/2017 in for assessment year 2009-10 seeking stay of recovery of the outstanding tax demand for the year under consideration. It has been pleaded in the Stay Application that the Department had wrongly and illegally recovered certain amounts from the applicant-assessee before the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat may be imposed by the Assessing officer qua the payment of amount assessed as has been done in the previous order, binding the petitioner to a schedule. (viii) In the meantime, the assessee received the impugned order of CIT(A) dated 17.10.2017 and moved an application before the Hon'ble High Court stating therein that since the appeal of the assessee has been decided by CIT(A) and the copy of the order has been received on 9.11.2017, which has been assailed before the ITAT Chandigarh Bench and that an application for stay has also been filed there; hence, the aforesaid writ petition allowed to be withdrawn. The Hon'ble High Court considering the above request allowed the application and dismissed the writ petition as withdrawn . (ix) Similarly, for assessment year 2013-14, a tax demand of ₹ 25.35 crores was raised by the Assessing officer out of which the assesse deposited a sum of ₹ 30.80 cores being 15% of the tax demand and the remaining tax demand was stayed by the Assessing officer till the pendency of the appeal before CIT(A). The appeal for assessment year 2013-14 was also decided by CIT(A) on 17.10.2017 and the copy of the order was dispa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application before this Tribunal and even on a date when the matter was fixed for hearing on the Stay Application before this Tribunal. The act of the Assessing officer demonstrates that she wanted to preempt the Tribunal from dealing with the Stay application which was scheduled for hearing on November 22, 2017. The Act and conduct of the Revenue officials in this case is against the judicial conscience. Canons of law, justice and ethics have been broken down by the officials of the Department. An effort has been made to render the provisions of the law inoperative, debarring the petitioner from availing any remedy from the higher forum. 8. The another shocking fact which emerged during the course of arguments is that when a question was raised to the Department officials as to how the Department came into knowledge of the order of the CIT(A) prior to 06.11.2017 when the copy of the same was dispatched to the assessee by the office of CIT(A)? None of the officials of the Department could satisfactorily explain about it. Even they could not satisfactorily inform as to on which date the office of the AO received the copy of the impugned order of the CIT(A). Under the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of both the parties, adjourned the matter to 22.11.2017 enabling the assessee to apprise about the true facts to the Hon ble High Court and if the assessee so desire, to withdraw the writ petition. The assessee immediately moved the Hon ble High court with an application for withdrawal of the writ petition in view of subsequent developments, which was allowed by the Hon ble High Court vide order dated 22.11.2017. We may mention here that till 22.11.2017, the directions of the Hon ble high court staying the impugned order of the AO were in force. Moreover, it has not been explained as to why the undue haste has been made when the matter was under consideration of the Tribunal as well of the Hon ble High Court. 10. Another argument has been made that the amount recovered on 20.11.2017 and 22.11.2017 was appropriated towards the outstanding demand for AY 2013-14 and that the order of the Hon ble High court was for AY 2009-10. We are again not convinced at this argument also. The Respondent department has the benefit of the order of the Hon ble High court for earlier assessment year involving similar facts and circumstances which was decided by the CIT(A) on the same date as for A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e file by the assessee is forged and fictitious. When this Tribunal, after hearing the aforesaid contention, proposed to refer the matter to the police authorities for verification as to whether the copy of the said order produced by the assessee was forged and fictitious, the Ld. Principal CIT arose and submitted that the Stay order eventually has been passed in favour of the assessee, however, that the same was not in force on the date of recovery on 2.11.2017 after passing the order on the appeal of the assessee by CIT(A) on 17.10.2017. From the above, it appears that the department has not come with any definite stand and the facts have been twisted as per whims and wishes of the Departmental officials and coercive recovery has been effected in an undue haste, violating all the principles of judicial discipline and natural justice. In the somewhat identical facts in the case of Maharashtra Housing Area Development Authority (MHADA) vs ADIT (Exemptions) [2014] 66 SOT 66 (Mumbai)/ URO / 49 taxman.com 341 (Trib), wherein coercive measure was made by the Department from the account of the assessee (MHADA) after the passing of the order of CIT(A) but prior to the hearing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount coercively recovered by the department, however, the ld. Counsel for the assessee at this stage has restricted his claim only qua the refund of the amount collected from the debtor of the assesse and further relief for the stay of the recovery of the balance amount of tax demand for the relevant assessment years 2009-10 and 2013-14 has been sought. 14. The department has admitted that an amount of ₹ 50 lakh has been collected from the debtor of the assessee towards tax demand against the assessee. We have already ordered for the refund of the amount collected from the debtor vide our interim directions dated 29.11.2017 (as reproduced in the earlier part of this order). The said directions are reaffirmed. So far as the stay of the recovery of remaining part of the tax demand and interest thereupon is concerned, the Ld. AR of the assessee has submitted that the assessee is a local body engaged in the development of land and plots, making the same available to the general public for residential and business purposes. The assessee in the said development activities is in the need of funds. The assessee has also substantial financial liabilities as it has raised subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt of which, the Department will be at liberty to seek vacation of Stay. Our observations made above, shall have no bearing effect on the merits of the case. 16. In the result, both the Stay Applications are treated as allowed. 4. Though severe structures have been passed by the Tribunal in its order dated 20.12.2017 against the officials of the department for illegal and coercive recovery made by them from the assessee and further despite directions of the Tribunal staying further recovery from the assessee and also to refund ₹ 50 lacs, illegally recovered from the debtor of the assessee as directed in the order dated 20.12.2017 reproduced above, the Departmental officials did not bother to give any heed to the directions passed by the Tribunal and again in complete violation of the orders of the Tribunal recovered / adjusted the amount of ₹ 16,50,62,238 vide letter of the Assessing officer dated 13.3.2018. Even the Assessing officer ignored the submissions made by the assessee vide letter filed on 28.2.2018 which was not only delivered to the office of the Assessing officer manually but also through e.mail dated 9.3.2018 and further reminder dated 12.3.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten submissions. It has been further argued by her that the notice cannot taken of the letter dated 13.3.2018 written by Dr. Ranjit Kaur, DCIT Circle 6(1) Mohali, who is the Assessing officer of the assessee, wherein it has been mentioned that the refund for assessment year 2008- 09 had been adjusted against the demand for 2009-10. That the assessee must produce the copy of the challan or other relevant evidences showing that the Assessing officer has adjusted the refund. That the action cannot be taken on the mere averments of the assessee without any supporting evidence. She has further submitted that even before taking any action, the Assessing officer be given an opportunity to reply to the averments made in application. Another argument has been addressed that this Misc. Applicationis not maintainable as it does notspeak of any mistake apparent on record of the order. That there was an order of the Hon'ble High Court dated 5.12.2017, whereas, this Tribunal subsequently has passed the order dated 20.12.2017. That in view of this, the order of the Tribunal is not enforceable. Further, that the present Misc. Application is not maintainable at this stage. 3. We have conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission that before passing any adverse order, opportunity of hearing should be granted to the Assessing officer, we are in agreement with the above submissions of the Ld. DR. Let the concerned Assessing officer be summoned and she be heard as to why the Contempt of Court proceedings be not initiated / recommended against her for violating / disrespecting the orders of the Tribunal and further why the appropriate costs be not imposed and reasonable damages be not awarded to the assessee in this respect and as to why the same be not recovered from the salary of the concerned responsible officer / officers. 6. Let the concerned Assessing officer as well as the other concerned officers who have either part of the execution of recovery or have approved the recovery / adjustment of refund despite the order of the Tribunal dated 20.12.2017 come and explain their position on 6.4.2018. Copy of the order be supplied to the Ld. DR so that the same may be conveyed further to the concerned officer/s. 5. Pursuant to the above order, the Assessing officer namely Dr. Ranjit Kaur, DCIT and the Additional CIT namely Shri Kultej Singh Bains, who approved the aforesaid proposal for adjustm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to ignore the principles of law and natural justice but cross their jurisdictional / authoritative limits, in complete violation of the directions / orders issued by their higher judicial authority. The concerned officials i.e the Assessing officer or the Addl. CIT, in our view, are not so ignorant or innocent to understand the likely consequences which they may have to face in proceeding illegally to make coercive recovery in violation of the orders of this Tribunal or higher courts but they, in our view, are so much pressurised by the higher officials to do so and they have to choose the lesser risky option out of the two i.e. either to face the departmental action / dire of their senior officers for not achieving the targets or to face the contempt proceedings, if any, likely to be initiated by the Courts of law for violation of their orders, and interestingly, they conveniently choose the later option because perhaps they think that courts / higher judicial authorities will not opt for strict view in case the amount coercively recovered is refunded after passing of the cutoff date i.e. 31st March, and an apology tendered to the Court / higher judicial authority. They also kn ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
