M/S. BIKANER GEMS AND JEWELLERY PVT. LTD. V. UNION OF INDIA

WP(C)/485/2018

AI Insights

Bikaner Gems and Jewellery Pvt. Ltd., a company engaged in the jewelry and gemstone business, faced tax liabilities for the assessment years 2011-12 and 2012-13, amounting to approximately Rs.1,02,21,941 and Rs.4,75,35,870 respectively. The company appealed against the assessment orders for both years but was unable to pay the demanded tax due to a dacoity at their showroom. The Income Tax Department issued notices under Section 226(3) of the Income Tax Act for tax recovery. The petitioner sought relief from the Gauhati High Court, which considered the circumstances of the dacoity and the ongoing appeals against the assessment orders.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 735153 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 09-02-2018
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: S SAIKIA
• Assessee Lawyers: G N SAHEWALLA
• Keywords: Appeal; Assessment Order; Dacoity; Income Tax; Tax liability
• Section: 226(3)

Judgement Text

"Page No.# 1/3 GAHC010011862018 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 485/2018 1:M/S. BIKANER GEMS AND JEWELLERY PVT. LTD. A PVT LTD COMPANY INCORPORATED ON 30-08-2001, UNDER THE PROVISIONS OF THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT GOSWAMI BUILDING, A.T.ROAD, MARWARI PATTY, NAGAON-782001 AND IS REP. BY ITS AUTHORIZED REPRESENTATIVE SHRI AMARCHAND MAHESHWARI, S/O- LT PANNALAL MAHESHWARI, RESIDING AT 1ST FLOOR, GOSWAMI BUILDING, A.T.ROAD, MARWARI PATTY, NAGAON, ASSAM VERSUS 1:UNION OF INDIA REP. BY THE MINISTRY OF FINANCE, GOVT. OF INDIA, NEW DELHI 2:COMMISSIONER OF INCOME TAX(APPEALS) GUWAHATI OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS) GUWAHATI AAYAKAR BHAWAN G.S.ROAD CHRISTIAN BASTI GUWAHATI 3:ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 2 GUWAHATI OFFICE OF THE ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 2 AAYAKAR BHAWAN G.S.ROAD CHRISTIAN BASTI GUWAHATI 4:TAX RECOVERY OFFICER-1 Page No.# 2/3 AAYAKAR BHAWAN G.S. ROAD GUWAHAT Advocate for the Petitioner : MR G N SAHEWALLA Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA JUDGMENT Date : 09-02-2018 Heard Mr. G.N. Sahewalla, learned senior counsel for the petitioner. Also heard Mr. S. Saikia, learned standing counsel in the Income Tax Department. 2. The petitioner which is a company engaged in the business of selling and dealing in jewellery and gemstone having its show room at Marwari Patty, Nagaon is having a certain issue as regards the payment of income tax for the assessment years 2011-12 and 2012-13. 3. Being aggrieved by the assessment order dated 31.03.2014, for the assessment year 2011-12 the petitioner preferred an appeal before the respondent No.2 being the Commissioner of Income Tax (Appeals), Guwahati, which was registered as Appeal No.GUWA-153/2014-2015. 4. Further there is an assessment order dated 13.02.2014 for the assessment year 2012-2013, which was subsequently revised by the order dated 30.12.2016. As regards the liability of the petitioner to pay the tax in respect of the aforesaid two assessment years, notices under Section 226(3) of the Income Tax Act were issued to the petitioner. 5. In this writ petition, the petitioner is aggrieved by one such notice dated 14.11.2017 under Section 226(3). The only grievance raised by the petitioner is that there was a dacoity in the jewellery shop of the petitioner, as a result of which, they are unable to pay the tax liability to the department for the present. 6. It is stated that an appeal was filed against the assessment order for the year 2011-2012 and a similar appeal is also intended to be filed by the petitioner for the assessment year 2012-2013. It is also stated that the total due as claimed by the Income Tax Department would be approximately about Rs.1,02,21,941/- for the assessment year 2011-2012 and Rs.4,75,35,870/- for the assessment year 2012-2013. Page No.# 3/3 7. It is stated by Mr. S. Saikia, learned counsel that although an appeal has been preferred against the assessment order for the year 2011-2012, but no such application has been filed by the petitioner for stay of the tax demand. Be that as it may, considering the ground sought to be made out by the petitioner that they are unable to pay the demanded amount for the present as because of the dacoity that had taken place in the showroom, this Court is of the view that although equity is otherwise not available in a situation resulting from default of payment of income tax, but considering the factor of the dacoity having taken place in the showroom of the petitioner, a view can be taken that if the petitioner pays a part of the amount demanded, the balance of the payable amount be stayed for the time being till appropriate appeal proceeding is disposed of by the concerned authority. 8. Mr. S. Saikia, learned counsel refers to an office memorandum dated 29.02.2016, where it is provided that in a case where the outstanding demand is disputed before the Commissioner, Income Tax (Appeal), the assessing officer shall stay the demand till disposal of the appeal on payment of 20% disputed amount. 9. In the aforesaid premises, as agreed between the parties, the petitioner undertakes to pay the amount of Rs.60,00,000/- within a period of fifteen days and upon the same amount being paid, the balance of the disputed amount be stayed till the decision by the appropriate appellate authority. 10. It is also provided that in the event the petitioner does not file the other appeal for the assessment year 2012-13 within the stipulated time, the interim protection in respect of the amount payable for the assessment year 2012-2013 shall stand automatically vacated and the department shall be entitled to recover the amount due. 11. In terms of the above, writ petition stands closed. However, as agreed by the parties, the appellate authority is requested to dispose of the pending appeal within a period of three months from today. JUDGE Comparing Assistant "