Najma Hussain V. The Commissioner of Income Tax, IV Ayakar Bhavan, Basheer Bagh, Hyderabad and others

WP/7579/2011

AI Insights

The case involves four writ petitions filed by the children of Syed Jamaluddin Ali Khan, who were beneficiaries of a property gifted under HIBA. The petitioners entered into a Development Agreement and received a share of the built-up area. For the assessment year 2007-2008, some petitioners did not file returns while others did, leading to different assessments. The Income Tax Department demanded a tax payment of Rs.64,04,680, which the petitioners contested, leading to their appeals being pending. They sought a stay on the tax recovery, which was denied, leading to these writ petitions. The court's decision focused on the procedural aspects of tax recovery and the authority of the assessing officer under the Income Tax Act.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 796917 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 30-03-2011
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Keywords: Appeal Pending; Development agreement; HIBA; Income tax assessment; Stay of Tax Recovery
• Section: 147; 143(3); 220(6)

Judgement Text

"THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.7579, 7596, 7626 and 7628 of 2011 Date:30.03.2011 Between: Najma Hussain .. Petitioner And The Commissioner of Income Tax, IV Ayakar Bhavan, Basheer Bagh, Hyderabad and othersr .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.7579, 7596, 7626 and 7628 of 2011 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) These four writ petitions are filed by the children of one Syed Jamaluddin Ali Khan who, statedly, was the owner of property bearing Municipal No.9-1-128, SD Road, Secunderabad, with appurtenant land admeasuring 5814.95 sq. yards. He gifted the said property to the petitioners herein under HIBA, each of them getting 1000 sq. yards. All of them entered into a Development Agreement jointly with M/s.Sree Jee Builders in December, 2004 whereunder they were entitled to a share of 44% of the built up area. For the assessment year 2007-2008, the petitioners in W.P.Nos.7579 and 7626 of 2011 did not file returns, whereas the petitioners in W.P.Nos.7596 and 7628 of 2011 filed returns. The returns were assessed under the Income Tax Act, 1961 (the Act, for brevity). On 21.12.2010, the third respondent passed assessment orders under Section 147 read with 143(3) of the Act. Being aggrieved all the petitioners filed separate appeals before the Commissioner of Income Tax (Appeals) IV and the said appeals are still pending. The demand for payment of tax from all the petitioners was to a tune of Rs.64,04,680/-. They filed an application before the third respondent on 22.02.2011 to keep the recovery of disputed tax in abeyance till disposal of the appeals. In response thereto, by a communication, dated 25.02.2011, the third respondent rejected the request for stay. Therefore, they approached the second respondent on 02.03.2011 requesting him to keep the collection of disputed tax in abeyance till disposal of the appeals. On considering the request the second respondent, presumably, exercising the administrative supervisory jurisdiction, passed an order dated 14.03.2011 directing all the petitioners put together to pay a sum of Rs.15.00 lakhs on or before 22.03.2011, in default of which coercive steps would follow. This order is assailed in these writ petitions. The counsel for the petitioners made submissions on the merits of the case pending before the Commissioner of Income Tax (Appeals) as well as the balance of convenience. According to him, the only source of livelihood to all the petitioners is the rents received from the built up portion and, if they are now asked to pay an amount of Rs.15.00 lakhs pending appeals, they would suffer hardship and irreparable injury. The Senior Standing Counsel for Income Tax opposes grant of any order and, on instructions, submits that the matters would be disposed of by the Appellate Commissioner within a period of three months from today. In the scheme of the Act, the power to treat an assessee as not being in default pending appeal is exclusively vested in the assessing officer under Section 220(6) of the Act. When the petitioners have already approached the authority and their prayer was rejected, we do not find any strong reason to differ from the assessing officer especially when, on the administrative side, the petitioners got some relief by reason of the order passed by the second respondent which is impugned in these writ petitions. We, therefore, refrain from showing any indulgence in matters of this nature. It would be in the interests of justice, if the appeals are disposed of by the Commissioner of Income Tax (Appeals) IV, within a period of three months from today. These writ petitions are, accordingly, disposed of. There shall be no order as to costs. ________________ (V.V.S. RAO, J) ______________________________ (RAMESH RANGANATHAN, J) 30.03.2011 Note:- Dispatch C.C. by 01.04.2011. (B/o) KH "