Calcutta High Court
M/S Tea Promoters (India) Private Ltd vs Assistant Commissioner Of Income Tax on 7 June, 2010
Author: Soumitra Pal
Bench: Soumitra Pal
WP No. 703 of 2010
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
M/S TEA PROMOTERS (INDIA) PRIVATE LTD. Petitioner/Applicant
Versus
ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4,Kolkata &
Ors.
........................Respondents
For Petitioner : Dr.D.P.Pal,Sr.Advocate with Mr.M.Dhar,Advocate and Mr.Avra Mazumder, Advocate.
For Defendant/Respondent : Mr. P.K.Bhowmik, Advocate. BEFORE:
The Hon'ble JUSTICE SOUMITRA PAL Date : 7th June, 2010.
The Court : In this writ petition the petitioner, a private limited company within the meaning of Companies Act, 1956, has 2 challenged the order dated 1st February, 2010 passed by the Deputy Commissioner of Income Tax, Circle-IV, Kolkata, respondent no.2 whereby while disposing of the petition for stay of recovery of demand for the assessment years 2002-2003 to 2007-2008 excepting 2005-06, had directed to pay the demand within thirty days from the date of service of demand notice on the ground that since the appeal as evident from paragraph-17 of the writ petition is pending before the Special Bench of the learned Income Tax Appellate Tribunal, the authorities should not have proceeded in enforcing the demand. Referring to an order dated 27th April, 2009 passed in W.P.No.321 of 2009 (M/s. Tea Promoters (India) Pvt. Ltd. v. Assistant Commissioner of Income Tax, Circle-IV, Kolkata) which pertains to the assessment year 2005-06 is submitted by Dr.Pal that since the issues are same and as the petitioner was directed to furnish an undertaking in writing to pay the demand relating to tax upon disposal of 3 the appeal to the satisfaction of the revenue authorities, similar order may be passed. Submission is that in the order relating to the assessment year 2005-2006 the direction to secure the immovable property was on the basis of submission made on behalf of the petitioner. It is submitted that as the appeal is pending before the Special Bench for quite some time, appropriate directions may be passed for early disposal of the same. Referring to the judgement in SOUL vs. Deputy Commissioner of Income Tax : 323 ITR 305 it has been submitted that as the assessments for the respective assessment years are more than 13 to 26 times than the returned income and the demands are high pitched and therefore, appropriate directions may be passed.
Mr.Bhowmik, learned advocate appearing on behalf of the Revenue has submitted that though in the order dated 27th April, 2009 it has been recorded that it would be sufficient for the ends of justice if the petitioner 4 furnishes an undertaking to pay tax upon disposal of the appeal before the learned Special Bench, directions may be issued to offer some security.
Heard the learned advocates for the parties. Admittedly, as evident from paragraph-17 of the writ petition appeal is pending before the Special Bench of the Tribunal for quite some time as evident from the order dated 27th April, 2009 passed in W.P.No.321 of 2009. Had appeal been taken up, perhaps there would have been no necessity of the assessee to approach this Court since the matter would have been settled. Therefore, as the issue is pending before the Special Bench of the Tribunal and considering the tenor of the order dated 27th April, 2009, I dispose of the writ petition by directing the petitioner to furnish an undertaking in writing to pay the demand relating to tax upon disposal of the appeal pending before the learned Special Bench of the Tribunal to the satisfaction of the Revenue authorities within a fortnight and upon furnishing such undertaking the 5 respondents shall withdraw the attachment notice of the bank accounts and the debtors' accounts as appearing in Page Nos. 152,153 and 154 of the writ petition, under section 226 (3) of the Income Tax Act, 1961 and shall allow the petitioner to operate the bank accounts till the disposal of the appeal. It is clarified that though the petitioner would be permitted to carry on day to day business operations and to make payment for statutory liabilities out of the said bank accounts, the petitioner shall not withdraw any money for any other purposes from the said bank accounts.
Since the appeal is pending before the Special Bench of the Tribunal, I hope and trust that it shall be taken up and disposed of preferably within twelve weeks from the date of the communication of the order. It is made clear that the petitioner shall not pray for any adjournment when the matter is taken up for hearing. I make it clear that I have not gone into the merits of the appeal pending before the learned Special Bench. 6
Since the writ petition is disposed of at the stage of admission without calling upon the respondents to file affidavits controverting the allegations made in the writ petition, the allegations are deemed not to have been admitted by them.
With these directions the writ petition stands disposed of. No order as to costs.
All parties concerned are to act on a signed copy of the minutes of the operative part of this order on the usual undertakings.
(SOUMITRA PAL, J.) ssaha A.R.(C.R.)