Gowardhan Ayurfarma Private Limited, Pune V. Deputy Commissioner of Income tax, Circle-1(2), Pune

SA 130/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0568 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 06-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K J KAWADE
• Keywords: Recovery proceedings; Application of stay
• Section: 80G

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO , AM S.A. NO.130/PUN/2018 (ARISING OUT OF ITA NO. 1092 /P U N/201 7) ASSESSMENT YEAR : 20 12 - 13 GOWARDHAN AYURFARMA PRIVATE LIMITED, 1341, GOWARDHAN N IWAS, BAJIRAO ROAD, SHUKRAWAR PETH, PUNE. PAN : AAECG1740L . / APPELLANT VS. D CIT, CIRCLE - 1(2 ), PUNE . . / RESPONDENT / APPELLANT BY : SHRI ABHAY S H ASTRI / RESPONDENT BY : SHRI K. J. KAWADE / DATE OF HEARING : 13 . 1 2 .2018 / DATE OF PRONOUNCEMENT: 17 . 1 2 .201 8 / ORDER PER D. KARUNAKARA RAO, AM : THE CAPTIONED STAY APPLICATION ARISES FROM ITA NO. 1092 /PUN/201 7 INVOLVING THE ASSESSMENT YEAR 2012 - 13 . AS PER THE STAY APPLICATION , THE ASSESSEE REQUESTS THE TRIBUNAL FOR STAY ON THE RECOVERY OF OU TSTANDING DEMAND OF RS.41,00,000/ - . 2. EARLIER, T HE PR.CIT - 1, PUNE REJECTED THE SAID REQUEST FOR STAY OF THE SAID OUTSTANDING DEMAND. THEREFORE, THE ASSESSEE IS IN FURTHER APPEAL BY WAY OF THIS STAY APPLICATION BEFORE THE TRIBUNAL. 3. THE BACKGROUND OF FACTS OF THE CASE INCLUDE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING AND DISTRIBUTION OF S A NO. 130 /PUN /201 8 2 HERBAL BISCUITS AND KULP (AYURVEDIC). THE RELEVANT ASSESSMENT YEAR IS 2012 - 13 (PREVIOUS YEAR ENDING ON 31.03.2012). THE ASSESSEE COMPANY FILED THE RETURN OF INCOME ON 29.09.2012 DECLARING INCOME OF RS.1,14,00,630/ - . THE ASSESSEE CLAIMED DONATING RS.40 LAKHS TO SHREEYASH PRASTISTHAN AND RS.25 LAKHS TO M/S SHG&PH (SCHOOL OF HUMAN GENETICS AND POPULATION HEALTH). IN THIS REGARD, ASSESSING O FFICER HELD THAT THE ASSESSEE RECEIVED THE CASH. D URING ASSESSMENT PROCEEDINGS, ASSESSING OFFICER HELD THAT THE ASSESSEE DID NOT QUALIFY FOR MADE DONATIONS TO THE SAID INSTITUTES WEIGHTED DEDUCTION OF RS.50,06,102/ - U/S 35 (1)(II) AND DEDUCTION U/S 80G OF THE ACT. ASSESSING OFFICER ADDED THE SAME. THE CIT(A) CONFIRMED THE ADDITION. THE DEMAND OUTSTANDING AS ON DATE IS RS.41 LAKHS. ASSESSEE DID NOT PAY ANY PART OF THE DEMAND. 4 . IN RESPECT OF THE SAID OUTSTANDING DEMAND, THE ASSESSING OFFICER INITIAT ED THE RECOVERY PROCEEDINGS AGAI NST THE ASSESSEE . A SSESSEE REQUESTED THE DEPARTMENT AUTHORITIES TO KEEP THE OUTSTANDING DEMAND IN ABEYANCE AND THE SAID REQUEST WAS REJECTED. IN BACKGROUND OF THESE FACTS , THE ASSESSEE FILED THE PRESENT STAY APPLICATION WI TH THE REQUEST TO STAY THE OUTSTANDING DEMAND . FURTHER, LD. AR REQUESTED FOR LIFTING THE ATTACHMENT ORDER OF THE BANK ACCOUNT OF THE ASSESSEE. 5 . BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A SUPPLIER OF GOODS TO THE GOVERNMENT . REFERRING TO THE ATTACHMENT ORDER OF THE BANK ACCOUNT, LD. COUNSEL SUBMITTED THAT THE BUSINESS OF THE ASSESSEE IS IN TROUBLE DUE TO FREEZING OF THE OPERATION OF THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE REQUESTS FOR LIFTING OF THE ATTACHMENT ON TH E SAID BANK ACCOUNT. FURTHER, HE REQUESTS FOR GRANT OF AN EARLY HEARING OF THE ORIGINAL APPEAL. S A NO. 130 /PUN /201 8 3 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE OPPOSED VEHEMENTLY TO THE ASSESSEE REQUEST IN THE STAY APPLICATION AND REQUESTED THE TRIBUNAL TO DIRECT THE ASSESS EE TO PAY THE ENTIRE OUTSTANDING DEMAND. 7 . WE HAVE HEARD BOTH THE PARTIES ON THIS LIMITED ISSUE OF STAYING ON THE OUTSTANDING DEMAND OF RS.41,00,000/ - . WE HAVE CONSIDERED THE FACT THAT THE DEPARTMENT HAS ALREADY INITIATED THE COERCIVE RECOVERY PROCEEDIN GS ON THE BANK ACCOUNT OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE FACT OF THE ATTACHMENT ON THE BANK ACCOUNT OF THE ASSESSEE, WHICH YIELDED THE BANK BALANCE OF RS . 60,000/ - (APPROXIMATELY). FURTHER, THE REQUEST OF LD. COUNSEL I.E. LIFTING OF THE ATTACH MENT ON THE BANK ACCOUNT , STAYING OF THE ENTIRE RECOVERY PROCEEDINGS AND THE REQUEST FOR GRANT OF AN EARLY HEARING ARE ALSO CONSIDERED. 8 . CONSIDERING ALL THE FACTS, WE ARE OF THE OPINION THAT IT IS A FIT CASE FOR PARTLY ALLOWING THE SA OF THE ASSESSEE . T HEREFORE, SUBJECT TO THE FOLLOWING CONDITIONS , THE REQUEST FOR STAY IS PARTLY ALLOWED : - (I) THE BANK BALANCES WITH BANK ACCOUNTS UNDER ATTACHMENT SHOULD BE RECOVERED BY THE ASSESSING OFFICER TOWARDS THE TAX EARLIER AND ATTACHMENT OF THE SAID BANK ACCOUN T S NEEDS TO BE LIFTED IMMEDIATELY SO THAT THE ASSESSEE CAN OPERATE HIS BANK ACCOUNT FOR BUSINESS PURPOSES . (II) THE RECOVERY ACTION ALREADY INITIATED AGAINST THE SUNDRY CREDITORS SHALL CONTINUE TI LL THE DEMAND IS RECOVER ED . S A NO. 130 /PUN /201 8 4 (III) THE REQUEST FOR EARLY HE ARING IS GRANTED AND THE CASE IS ACCORDINGLY POSTED FOR HEARING ON 06.02.2019. 9 . ACCORDINGLY, SUBJECT TO THE ABOVE INDICATED TERMS AND CONDITIONS THE STAY APPLICATION IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 17 TH D AY OF DECEMBER , 2018 . SD/ - SD/ - (SUSHMA CHOWLA) ( D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE ; DATED : 17 TH DECEMBER , 2018 . SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A) - 1 , PUNE ; 3. THE CIT(A) - 1 , PUNE ; 4. THE PR. C CIT , PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . // TRUE COPY // / BY ORD ER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE