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WP/19170/2022

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The case involves a challenge to an order under Section 220(6) of the Income Tax Act, 1961, concerning a demand of Rs.2,02,47,880 for the assessment year 2019-20. The petitioner had filed a stay application which was not initially addressed, leading to a prior Writ Petition that resulted in a directive for the 2nd respondent to decide on the stay application. Following this, the 2nd respondent ordered a 20% deposit of the disputed amount for a stay, which the petitioner contested. The High Court, referencing a similar case and Supreme Court precedent, found the order to deposit 20% as mechanically applied and set it aside, directing a 10% deposit instead.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 676396 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 07-07-2022
• Assessment Year: misc
• Other Referred Cases: Principal Commissioner of Income tax 5 and others vs. M/s LG Electronics India Private Limited
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Applicant
• Court: HIGH COURT
• Department Lawyers: M KIRANMAYEE
• Assessee Lawyers: NOT SPECIFIED IN THE DOCUMENT
• Keywords: Assessment Year 2019-20; Coercive Steps; Income Tax; Stay Application; Deposit 20%
• Section: 143(3); 220(6); 240-A

Judgement Text

" HON'BLE SRI JUSTICE A.V.SESHA SAI AND HON’BLE SMT JUSTICE V.SUJATHA W.P.No.19170 of 2022 ORDER: (per AVSS,J) In the present Writ Petition, challenge is to the order passed by the 2nd respondent vide DIN and Letter No.ITBA/ RCV/F/17/2022-23/1043135945(1), dated 24.05.2022, under Section 220(6) of the Income Tax Act, 1961 (for short ‘the Act’) for the assessment year 2019-20. The respondent authorities issued an intimation under Section 143(3) of the Act on 08.12.2020, demanding a sum of Rs.2,02,47,880/-. Against the said intimation dated 08.12.2020, petitioner filed a statutory appeal on 15.12.2020, under Section 240(A) of the Act, before the National Faceless Appeal Center-3rd respondent herein, and the said appeal is pending. Pending appeal, petitioner herein filed stay application dated 16.12.2020, before the 2nd respondent, Assessing Officer, under Section 220(6) of the Act. When the 2nd respondent failed to pass any orders on the said stay application, petitioner herein approached this Court by way of filing W.P.No.5477 of 2022. This Court, vide order dated 21.03.2022, disposed of the said Writ Petition and the operative portion of the said order reads as follows: “Having regard to the above, the present Writ Petition is disposed of directing respondent No.2 to pass orders in the stay application filed by the petitioner for the Assessment Years 2018-19 and 2019-20 in accordance with law as early as possible preferably within a period of four (04) weeks from today. Till such time, the 2 respondents are directed not to take any coercive steps for recovery of the amount due. No order as to costs.” In pursuance of the aforesaid order of this Court, the 2nd respondent, on 24.05.2022, passed the impugned order, asking the petitioner to pay 20% of the disputed demand of Rs.2,02,47,880/-, within 15 days for grant of stay for the balance disputed amount. Today, when the matter is taken up, it is brought to the notice of this Court by the learned counsel for the petitioner that, the issue in the present Writ Petition is no longer res integra and a Division Bench of this Court disposed of an identical matter vide W.P.No.9349 of 2021. A copy of the same is filed along with the present Writ Petition as a material paper. The Division Bench in the aforesaid order, after taking into consideration the law laid down by the Hon’ble Supreme Court in the case of Principal Commissioner of Income tax 5 and others vs. M/s LG Electronics India Private Limited1 disposed of the said Writ Petition and the operative portion of the said order reads as follows: “Coming to the legality of the impugned order, we note that the same runs counter to the ratio laid down in Principal Commissioner of Income Tax (supra), wherein the Hon’ble Apex Court clarified in such cases the appellate authority being a quasi judicial authority ought to apply its mind to each individual case and not be guided solely by the instructions of the Department. The appellate authority has mechanically followed the CBDT directions and ordered the assessee to deposit 20% of the demand. Hence, we are of the opinion that the said order suffers from an error apparent on the fact of the record and is liable to be set aside in the facts and circumstances of the case. Ordinarily, under such circumstances, the matter ought to have been remanded to the first appellate authority for fresh consideration in accordance with law. However, as the petitioner- assessee has deposited 10% of the demanded amount, as aforesaid and the materials on record placed before us show that the petitioner has arguable case before the appellate authority, we 1 (2018) 12 ITR-OL 334 (SC) 3 direct that the said interim arrangement shall continue till the disposal of the appeal.” It is also submitted by the learned counsel that, the petitioner herein has already deposited 5% of the disputed tax. Having regard to the above reasons and taking into consideration the submissions of the learned counsel for the petitioner and Smt.M.Kiranmayee, learned Standing Counsel for the Income Tax Department, Writ Petition is allowed, setting aside the order dated 24.05.2022, passed by the 2nd respondent. However, the petitioner herein shall deposit 10% of the demanded amount within a period of six (6) weeks from the date of receipt of a copy of this order. It is further made clear that the amount, if any, paid by the petitioner, as stated supra, shall be given credit to while computing the said 10%. It is also made clear that in the event of failure to deposit the amount as indicated supra, this order will not enure to the benefit of the petitioner and the respondents are at liberty to proceed in accordance with law. There shall be no order as to costs. Consequently, Miscellaneous Petitions, if any, pending shall also stand dismissed. __________________________ JUSTICE A.V.SESHA SAI __________________________ JUSTICE SMT.V.SUJATHA Date:07.07.2022 4 vsl HON'BLE SRI JUSTICE A.V.SESHA SAI AND HON’BLE SMT JUSTICE V.SUJATHA WRIT PETITION No.5469 of 2022 11.07.2022 VSL "