Orissa High Court
Essar Enterprises vs Central Board Of Direct Taxes on 28 June, 2024
Bench: B.R. Sarangi, G. Satapathy
IN THE HIGH COURT OF ORISSA, AT CUTTACK
W.P (C) No. 15000 of 2024
&
I.A. No. 7090 of 2024
Essar Enterprises, Sundargarh ..... Petitioner
Mr. R.P. Kar, Sr.Adv. along with
Mr. C. Parida, Adv.
Vs.
Central Board of Direct Taxes, New ..... Opposite Parties
Delhi and others
Mr. S.C. Mohanty, Sr. Standing Counsel,
Revenue
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE G. SATAPATHY
ORDER
28.06.2024 Order No. This matter is taken up through hybrid mode.
01.
2. Heard learned counsel for the parties.
3. The petitioner has filed this writ petition seeking to quash the order dated 22.01.2023 passed by opposite party no.2 for the assessment year 2018-19 under Annexure-1.
4. Mr. R.P. Kar, learned Senior Counsel appearing along with Mr. C. Parida, learned counsel for the petitioner vehemently contended that this is the second journey of the petitioner to this Court. Earlier, the petitioner had approached this Court by filing W.P.(C) No.38476 of 2023 and this Court taking into consideration the grievance made by the petitioner, vide order dated 05.12.2023, passed order relying upon the judgment passed by the Delhi High Court in the case of LG Electronics India Private Limited v. PR. Commissioner of Income Tax and others (W.P.(C) No.6778 of 2017, disposed of on 08.08.2017). The said judgment was challenged by Page 1 of 3 the Department before the apex Court by filing Civil Appeal No.6850 of 2018 (arising out of SLP (C) No. 19827 of 2018 @ Diary No. 18927 of 2018) and the apex Court, vide order dated 20.07.2018, passed the following orders:-
"Delay condoned.
Leave granted.
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 cases, to grant deposit orders of a lesser amount that 20% pending appeal."
5. It is further contended that relying upon the aforesaid order, this Court disposed of the writ petition by holding that since the CBDT guidelines basing upon which 20% of the demand amount has been raised to grant stay, that is not conclusive one. Rather, it is an administrative circular, which does not operate as a fetter on the Commissioner, who is a quasi judicial authority and he has to act in accordance with the provisions of law. By holding so, this Court quashed the outright rejection to grant stay of demand raised for assessment year 2018-19 by the Principal Commissioner of Income Tax, Sambalpur vide order dated 26.10.2023 under Annexure-1 and remanded the matter back to the Principal Commissioner of Income Tax, Sambalpur to rehear the case of the petitioner in consonance with the direction given by the apex Court. It is contended that as per Annexure-1 the 20% comes to Rs.55,40,904/- (20% of Rs.2,77,04,503/-), but the petitioner is entitled to get refund for the assessment year 2023-24 to the tune of Rs.52,18,820/- and, as such, the same has been adjusted without giving any opportunity to the petitioner. It is contended that the balance amount of Rs.3,20,080/-
Page 2 of 3may be stayed by this Court till final adjudication of the appeal.
6. Mr. S.C. Mohanty, learned Standing Counsel appearing for the Revenue seeks time to obtain instruction in the matter.
7. As it appears, this Court relying upon the judgment passed by the Delhi High Court, which has been confirmed by the apex Court, directed the opposite parties to act in accordance with law. But the opposite party-authority, without adhering to the said order, has transgressed its limit and, as such, directed the petitioner to pay the 20% demanded amount, i.e., Rs.55,40,904/- without any application of mind. It shows that the Principal Commissioner is adament not to comply the direction given by this Court as well as Delhi High Court and apex Court, as mentioned above. Consequentially, the Principal Commissioner, Income Tax, Sambalpur has acted in gross disregard to the order passed by this Court as well as Delhi High Court and apex Court. In any case, since learned Senior Standing Counsel seeks time to obtain instructions in the matter, let him do so within a period of two weeks.
8. As an interim measure, it is directed that the Principal Commissioner, Income Tax, Sambalpur will not insist the petitioner to deposit the balance amount of Rs.3,22,080/- and proceed with the adjudication of the appeal, which is pending before the said forum till the matter is decided by this Court.
(DR. B.R. SARANGI)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Ashok
Designation: Secretary (G. SATAPATHY)
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 01-Jul-2024 15:32:37
JUDGE
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