Bombay High Court
Arcil- Retail Loan Portfolio-004 D ... vs Principal Commissioner Of Income Tax - ... on 28 March, 2019
Bench: Akil Kureshi, Sarang V. Kotwal
8. os wpl 827-830-19.doc
R.M. AMBERKAR
(Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
WRIT PETITION (L) NO. 827 OF 2019
ARCIL-Daewoo Motors Limited Trust, Mumbai & Anr. .. Petitioners
Versus
Pr. Commissioner of Income Tax -21, Mumbai & Ors. .. Respondents
WITH
WRIT PETITION (L) NO. 830 OF 2019
ARCIL- Retail Loan Portfolio-004 D Trust, Mumbai & Anr. .. Petitioners
Versus
Pr. Commissioner of Income Tax -21, Mumbai & Ors. .. Respondents
...................
Mr. Jitendra Jain i/by Mr. Atul Jasani for the Petitioners
Mr. Sham Walve for the Resondents
...................
CORAM : AKIL KURESHI &
SARANG V. KOTWAL, JJ.
DATE : MARCH 28, 2019.
P.C.:
1. Heard learned counsel for the parties for final disposal
of the petitions.
2. Undisputed position is that under identical
circumstances, group of Petitions being Writ Petition No. 810
of 2019 and connected petitions came to be disposed of by
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this Court by an order dated 22.3.2019 in following manner:
"2. The Petitioners have challenged an order dated
13/02/2019 passed by the Respondent No.2 Income Tax Officer and
another order dated 05/03/2019 passed by the Principle
Commissioner of Income Tax. Under such orders, the Petitioners are
directed to deposit 20% of the tax demand arising out of the order of
assessment dated 24/12/2018. The Petitioners pray that the entire
tax recovery be stayed pending Petitioners' Appeal before the
Appellate Commissioner. The Petitioners' main ground in support of
their prayer is that the ground on which the additions are made by the
Assessing Officer in the order of assessment, is already reversed by
the Appellate Commissioner in case of another Assessee. According
to the Petitioner, the facts being identical, the Petitioners should also
get the benefit of such order of the Appellate Commissioner. In view
of the facts, the Petitioners request that the entire tax demand be
suspended pending consideration of the Petitioners' Appeal.
Learned Senior Advocate appearing for the Petitioners submitted that
even the CBDT circular which lays down general guidelines for
deposit of tax pending Appeal, recognizes a situation where on
similar issue the Appellate Authority or the Tribunal has already taken
a decision in favour of the Assessee. In such circumstances, formula
of depositing 20% tax pending Appeal, can be relaxed.
3. In our order dated 14/03/2019, in paragraphs 2 to 5, we
had outlined the factual and legal controversies arising in this Petition
in the following manner :
"2. The petitioner is a trust. The object of the trust is to
acquire Non-Performing Assets ("NPAs" for short) by banks
and recover dues from the defaulters. For the assessment
year 2016-17, the Assessing Officer passed an order of
assessment on 24.12.2018 making certain disallowances and
additions in the hands of the assessee which has given rise to
a tax demand of Rs. 6.69 crores (rounded off). Against such
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order of assessment, the petitioner has filed an appeal before
the Commissioner (Appeals) on 16.1.2019. Pending such
appeal, the petitioner first requested the Assessing Officer to
keep tax demand in abeyance. The Assessing Officer passed
an order on 13.2.2019 directing the petitioner to deposit 20%
of the tax demand, upon which the rest of the recovery would
be stayed. The petitioner thereupon approached the Principal
Commissioner of Income Tax and requested for full waiver of
recovery. The Commissioner rejected such a petition by the
impugned order dated 5.3.2019. Against this order, the
petition has been filed. In other petitions, though figures are
varying, the facts are common.
3. Learned counsel for the petitioner pointed out that the
additions made by the Assessing Officer in the present set of
assessment orders were made in hands of other similar trusts
created under ARCIL. Such order of assessment was
challenged before the CIT(A) and by his order dated 3.1.2018,
the appeal of the assessee was allowed and all the additions
made by the Assessing Officer were deleted. When this fact
was brought to the notice of the Commissioner while
requesting for stay, the Commissioner in the impugned order,
observed that such order of the appellate Commissioner has
not been accepted by the Revenue and in other cases, no
appeal could be filed due to low tax effect.
4. It would prima facie appear that the assessment orders
in the present case are based on same additions and
disallowances which under similar if not identical
circumstances, have been deleted by the appellate
Commissioner which order as of today holds the field. Under
the circumstances, it would prima facie appear that no
recovery pending the appeal before the appellate
Commissioner could be carried out. This Court in the case of
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UTI Mutual Fund Vs. ITO1 had observed that, "If the
Assessing Officer has taken a view contrary to what has been
held in the preceding previous years without there being a
material change in facts or law, that is a relevant consideration
in deciding the application for stay."
5. In the present case, prima facie, the Revenue is unable
to point out any material change in the facts or law on the
basis of which the Assessing Officer has made the additions."
4. The learned Counsel for the Revenue opposed these
Petitions contending that the Respondent - authorities have passed
orders which are in consonance with the CBDT's circular. The
Petitioners have not made out any case for interference.
5. Having thus heard the learned Counsel for the parties
and having perused the documents on record, it appears an
undisputed position that the ground on which the Assessing Officer
has made additions in the order of assessment giving rise to the tax
demand, is already decided in favour of some other Assessee by the
Appellate Commissioner in other proceedings. Even though this
Assessee in such Appellate proceedings is not the Petitioner,
nevertheless, if the facts and law are identical, there is no reason
why the present Petitioners also should not get the benefit of such
Appellate order passed by the Commissioner in case of another
Assessee.
6. In fact, the Respondent No.1 - Principal Commissioner
of Income Tax, while rejecting the Petitioners' request for complete
stay pending the Appeal, agreed that the issue is covered by the
Appellate order. However, he observed that the Department has not
accepted such decision of the Appellate Commissioner and has
carried the matter before the Income Tax Appellate Tribunal. It is
1 (2012) 345 ITR 71 (Bom)
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entirely open for the Department to carry the challenge against the
order of Appellate Commissioner before the Tribunal. However, till
such order is reversed by the Tribunal, the effect of such order would
continue to apply. In other words, in view of the Appellate order,
which is in force presently, the Department cannot take a stand that
such order has no binding effect or that said order should be ignored
for the purpose of deciding the condition of deposit of tax pending
Appeal.
7. In view of such facts, these Petitions are disposed of
with the following directions :
ORDER
(i) There shall be unconditional stay against the recovery of tax pending Appeals.
(ii) If the order of the Commissioner (Appeals) in case of Scheme A1 of ARCIL CPS 002 XI Trust is reversed by the Tribunal, it would be open for the Principal Commissioner of Income Tax to impose a suitable condition for the Assessee to deposit tax pending Appeals, which order shall be passed after giving a reasonable opportunity of hearing to the Petitioner.
(iii) The Petitioners shall not contribute to any delay in disposal of the Appeals. If in the opinion of the Department, the Petitioners are responsible for delay in disposal of the Appeals, it would be open for the Department to apply for recalling this order.
(iv) With these directions, all Petitions are disposed of.
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3. Without giving separate reasons, these petitions are also disposed of in terms of paragraph 7 of the said order.
[ SARANG V. KOTWAL, J. ] [ AKIL KURESHI, J ] 6 of 6 ::: Uploaded on - 29/03/2019 ::: Downloaded on - 30/03/2019 01:38:02 :::