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TMI Blog2019 (4) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... urns were filed by the petitioner disclosing the tenancy, right from the date when they got exemption from payment of Income tax u/s 12A(a). The Assessing Officer ought to have considered all these aspects and should have granted stay of the impugned order. This Court is of the considered view that the Assessing Officer has committed an error and has not exercised his discretion available to him for the grant of stay in the instant case. However, since the appeal has already been filed by the petitioner as against the order dated 14.12.2018 before the second respondent and as it is a revenue matter involving substantial sums of money, the Appeal will have to be disposed of expeditiously. The Commissioner of Income Tax (Appeals) has go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the said properties are much higher than what the petitioner is collecting from them as rent. It is the petitioner's case that the Department has wrongly assessed the market rent for the properties let out by the petitioner at ₹ 1,79,67,636/- whereas, as per the returns filed by the petitioner, the actual rent received from the respective tenants is only ₹ 5,34,372/-. The Income Tax Officer passed an order dated 14.12.2018 directing the petitioner to pay ₹ 82,70,246/- as tax, together with interest. Aggrieved by the order of the Income Tax Officer, dated 14.12.2018, the petitioner preferred an appeal before the second respondent on 19.01.2019. 4. It is also the case of the petitioner that they had filed a peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e included in the total income of the previous year...'The reference in sub-s.(1)(a) is invariably to 'income' and not to 'total income'. The expression 'total income' has been specifically defined in s.2(45) of the Act as 'the total amount of income...computed in the manner laid down in this Act.' It would, accordingly, be incorrect to assign to the word 'income', used in s.11(1)(a), the same meaning as has been specifically assigned to the expression 'total income', vide s.2(45)... 4.Where the trust derives income from house property, interest on securities, capital gains, or other sources, the word income should be understood in its commercial sense, i.e., book income, after addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018. In such circumstances, the instant writ petition has been filed. 7. Heard Mr.Vijayaraghavan, learned counsel for the petitioner and Mrs.S.Srimathy, learned standing counsel accepts notice on behalf of the respondents. 8. The learned counsel for the petitioner drew the attention of this Court to the judgment made by the learned Single Judge of this Court in Samms Juke Box vs., Assistant Commissioner of Income Tax reported in (2018) 409 ITR 33 (Mad) wherein it was held that grant of stay is a discretionary relief and when a prima facie case has been shown involving high pitched assessment and financial burden on an assessee, stay on condition of 20% of the amount demanded as per the internal circular is not justified. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that the internal circular of the Department requiring assesses to deposit 20 % of the disputed tax amount for the purpose of obtaining stay of recovery has not been complied with. 9. Per contra, the learned standing counsel for the respondents would submit that the Assessing Officer is bound by the circular in Instruction No.1914 dated 31.07.2017 and therefore, he was right in dismissing the stay application, since the petitioner has not deposited 20% of the tax together with interest. Discussion: 10. It is an admitted case that the said tenants were the tenants of the petitioner right from the year 1973, when the petitioner's Trust was approved under Section 12A(a) of the Income Tax Act for exemption. It is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income Tax (Appeals). 12. This Court is of the considered view that prima facie case has been made out by the petitioner since the Associate Companies who are their tenants from the date when the petitioner obtained exemption from payment of income tax under Section 12A(a) of the Income Tax Act right from the year 1973 onwards. In the instant case, the Income Tax Department has raised the issue only for the Assessment Year 2016-17 even though income tax returns were filed by the petitioner disclosing the tenancy, right from the date when they got exemption from payment of Income tax under Section 12A(a) of the Income Tax Act. The Assessing Officer ought to have considered all these aspects and should have granted stay of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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