ALLAHABAD BANK PANCH BATTI V. DEPUTY COMMISSIONER and ORS

CW/15124/2017

AI Insights

The case involves Allahabad Bank challenging an assessment order and subsequent attachment orders related to tax recovery. The bank had already filed an appeal against the assessment order, which was pending before the Commissioner of Income Tax (Appeals). Simultaneously, the bank filed a writ petition challenging the assessment and the attachment orders issued by the Income Tax authorities. The court dismissed the writ petition, emphasizing that the bank could not pursue both an appeal and a writ petition simultaneously for the same relief. Additionally, the court noted the bank's failure to comply with the procedural requirement of depositing 15% of the disputed tax amount, which was a condition for considering the stay application.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 726233 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 07-09-2017
• Assessment Year: misc
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: ANURAG KALAVATIA
• Keywords: Appeal; Assessment Order; Attachment of account; Income Tax; Interim order; TDS

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 15124 / 2017 Allahabad Bank, Panch Batti, M.I. Road, Jaipur Through Chief Manager Mr. Sandeep Kumar Bhargava S/o Late Sh. Gopal Krishna Bhargava, Aged About 49 Years, R/o 2/709, Malviya Nagar, Jaipur- 302017 ----Petitioner Versus 1. Deputy Commissioner of Income Tax (TDS), Jaipur, Room No. 312, N.C.R.B. Statue Circle, Jaipur. 2. Assistant Comissioner of Income Tax (TDS), Jaipur, Room No. 312, N.C.R.B. Statue Circle, Jaipur. 3. The Commissioner Income Tax (Appeals), Jaipur-III, N.C.R.B., Statue Circle, Jaipur ----Respondents _____________________________________________________ For Petitioner(s) : Mr Anurag Kalavatia For Respondent(s) : _____________________________________________________ HON'BLE MR. JUSTICE M.N.BHANDARI Judgment 07/09/2017 By this writ petition, a challenge is made to the order of assessment dated 30.3.2016 against which petitioner has already preferred an appeal and is pending with Commissioner of Income Tax (Appeals). The other order under challenge is dated 10.8.2017, 22.2.2016 and 22.8.2017 where the Reserve Bank of India has been requested to attach the account so as to make recovery of the amount of tax. (2 of 4) [CW-15124/2017] Learned counsel submits that assessment of the amount has been made by the Income Tax Officer in ignorance of the fact that no TDS was deductable in regard to the transaction by certain establishments exempted for it. Ignoring the aforesaid, assessment order was passed by the Assistant Commissioner of Income Tax (TDS). In the light of the facts given above, Dy Commissioner of Income Tax was expected to pass interim order. The assessing authority, pending appeal before the CIT (Appeals), passed an order on 8.8.2016 to deposit 15% of the outstanding demand so that application for stay of the demand can be considered. It has been issued as per the instructions of the Central Board of Direct Taxes (CBDT) though no tax is payable on account of non-deduction of TDS for the reasons given above thus the assessment order deserves to be set aside so as the consequential order of attachment of the property through RBI. I have considered the submissions and perused the record. A challenge has been made to the assessment order dated 30.3.2016 at annexure-8 though the petitioner bank has already preferred an appeal and is pending with the CIT (Appeals). In view of the above, petitioner is taking two remedies simultaneously though it is not permissible. Two proceedings at a time for same relief or to challenge the same order can have serious consequence as the appellate authority may allow or (3 of 4) [CW-15124/2017] dismiss the appeal, whereas, contrary to it, some order is passed in the writ petition thus two remedies cannot be permitted simultaneously. It is admitted that appeal against the order of assessment is still pending with the CIT (Appeals). The writ petition to challenge the assessment order cannot be accepted. It is more so when statute provides remedy which has been availed by the petitioner bank. The question now remains about the order passed for attachment of the amount through RBI. The petitioner has already filed stay application and, on the aforesaid, an order was passed on 8.8.2016 to deposit 15% of the tax amount. The petitioner bank has not complied the order aforesaid and otherwise not challenged it before this court. In absence of the challenge, petitioner bank remains under an obligation to deposit 15% of the tax amount for consideration of the stay application. When the stay application is pending then, for the aforesaid relief, writ petition would not be maintainable. The attachment order has been issued in absence of the interim order during pendency of the appeal before the CIT (Appeals). The High Court cannot be reduced to the assessing authority for grant of interim relief which otherwise can be prayed and granted subject to conditions, if any. If petitioner bank remains aggrieved by any such conditions, can challenge it. In absence of challenge to the order dated 8.8.2016, writ petition to challenge the attachment cannot be accepted. In (4 of 4) [CW-15124/2017] view of the above, I do not find any reason to grant the prayer and to cause interference in the impugned order. Hence, writ petition is dismissed. However, petitioner bank is given liberty to deposit 15% of the tax amount to pursue the stay application or to challenge the order aforesaid. If the amount of 15% is satisfied, stay application would be considered expeditiously and, at the same time, CIT (Appeals) is also directed to hear and decide the appeal at the earliest and, if possible, within a period of two months from the date of receipt of copy of this order. (MN BHANDARI) J. bnsharma "