Delhi High Court - Orders
M/S Gpa Foods Private Limited vs Income Tax Officer Ward 10(3) New Delhi ... on 20 December, 2023
$~55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 16480/2023 & CM APPLs.66356-66357/2023
M/S GPA FOODS PRIVATE LIMITED ..... Petitioner
Through: Mr. Aditya Kumar Garg, Advocate
versus
INCOME TAX OFFICER WARD 10(3) NEW DELHI AND ANR
..... Respondents
Through: Mr. Abhishek Maratha, Advocate for
Revenue
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 20.12.2023
1. Present writ petition has been filed challenging the order dated 31st August, 2023 passed by the Respondent No.1 for the Assessment Year ['AY'] 2018-19, whereby the Petitioner's application seeking stay of the demand has been rejected and the Petitioner has been directed to deposit twenty per cent (20%) of the outstanding demand by 11th September, 2023. Petitioner also seeks directions to the Respondents to stay the recovery of demand against the Petitioner till the appeal filed against the assessment order dated 28th March, 2023 passed under Section 147 of the Income Tax Act, 1961 [for short 'Act'] for the AY 2018-19 is decided.
2. Learned counsel for the Petitioner states that the petitioner had submitted its return of income on 31st March, 2022 pursuant to a notice dated 28th March, 2022 issued under Section 148 of the Act. He states that in This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2023 at 23:17:06 order to assume jurisdiction to make the assessment, the notice under Section 143(2) of the Act was required to be issued and served on the Petitioner on or before 30th June, 2022. However, the same was issued to the Petitioner only on 16th December, 2022. He submits that in view of the decisions of this Court in Alpine Electronics Asia P Ltd. vs. Director General of Income-tax [2012] 341 ITR 247 (Del), such assessment is liable to be quashed. He states that the impugned order rejecting the stay application filed by the petitioner is a non-speaking order and does not deal with the contentions raised by the Petitioner in its application. He states that the Petitioner's contention that the demand was likely to get quashed/nullified by the appellate authority ought to have been taken into account while passing the impugned order.
3. Issue notice.
4. Mr. Abhishek Maratha, learned counsel for the Revenue accepts notice. He states that the contentions of the assessee are not correct as the assessee had not filed a valid income tax return.
5. Having heard learned counsel for the parties, this Court is of the view that the impugned order dated 31st August, 2023 rejecting the stay application of the Petitioner is a non-speaking order. The only reason given for the rejection of the Petitioner's application is that the Petitioner has not deposited twenty per cent (20%) of the demand raised and that a stay can only be granted if twenty per cent (20%) of the demand is paid by the assessee, is untenable in law. The Supreme Court in PCIT vs. M/s LG Electronics India Pvt. Ltd. (2018) 18 SCC 447 has held that tax authorities are eligible to grant stay on deposit of an amount lesser than twenty percent of the disputed demand in the facts and circumstances of a case. The This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2023 at 23:17:06 relevant portion of the said judgment is reproduced hereinbelow:-
"Having heard Shri Vikramjit Banerjee, learned ASG appearing on behalf of the appellant and giving credence to the fact that he has argued before us that the administrative Circular will not operate as a fetter on the Commissioner since it is a quasi-judicial authority, we only need to clarify that in all cases like the present, it will be open to the authorities, on the facts of individual case, to grant deposit orders of a lesser amount that 20%, pending appeal."
(emphasis supplied)
6. Since the three basic principles i.e. the prima facie case, balance of convenience and irreparable injury have not been considered while deciding the stay application and the contention advanced by the learned counsel for the revenue does not find mention in the impugned order, the impugned order is set aside and the matter is remanded back for a fresh decision on the application for stay within twelve weeks.
7. With the aforesaid direction, the present writ petition and pending applications stand disposed of.
ACTING CHIEF JUSTICE MINI PUSHKARNA, J DECEMBER 20, 2023 AS This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 21/12/2023 at 23:17:07