Calcutta High Court
Itd Cementation India Ltd & Anr vs Asst. Commissioner Of Income Tax ... on 7 August, 2013
Author: Harish Tandon
Bench: Harish Tandon
ORDER SHEET
W.P. 690 of 2013
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
ITD CEMENTATION INDIA LTD & ANR.
Versus
ASST. COMMISSIONER OF INCOME TAX (TDS)CIRCLE 58, KOL & ANR.
BEFORE:
The Hon'ble JUSTICE HARISH TANDON
Date: 7th August, 2013.
Mr. J.P. Khaitan, Adv.
... for the Petitioners
Md. Nizamuddin, Adv.
The Court: Assailing an assessment order passed under Section
201(1) read with Section 201(1)(a) of the Income Tax Act, an appeal is taken
out by the petitioners before the CIT (Appeals) which is still pending.
Amidst the pendency of the said appeal, an application under Section
220(6) of the said Act is taken out by the petitioner before the assessing
authority to treat the petitioners as non-defaulters.
Mr. Khaitan, the learned Advocate appearing for the petitioners,
submits that the assessing authority, while rejecting the said application,
misconstrued the notification which permits the exemption of tax deducted
at source in respect of the charges relating to bank guarantees.
In turn the respondent authorities say that the petitioners have not
taken out any application for stay before the appellate authority but have approached the assessing authority under Section 220(6) of the said Act and the authority within the compass of the said provisions have disposed of the 2 said application. It is further submitted that the notification does not permit the exemption as claimed by the petitioners and there is no occasion for misconstruction thereof.
From the respective submissions it appears that an appeal is pending against the main order and the appellate authority is in seisin of the matter.
This Court feels that justice shall be sub-served if the petitioners approach the appellate authority by filing an application for stay instead of moving the assessing authority who has already determined the cost in one way or other.
Accordingly, the petitioners are permitted to file an application for stay before the appellate authority within two weeks from date and if such application is filed, the appellate authority would take all endeavour to dispose of the same on expeditious basis.
Mr. Khaitan says that the respondents are contemplating to take a coercive measure on the basis of an order which is the subject matter of an appeal before the appellate authority. The respondents say that since no order of stay is passed by the appellate authority, there is no impediment in proceeding for realisatioin of the amount was determined by the assessing authority.
This Court has permitted the petitioners to file an application for stay before the appellate authority and if the authority proceed to take step for realisation of the amount it would cause undue hardship to the petitioners. The authorities are, therefore, restrained from taking any step or further steps for realisation of an amount so assessed which is the subject matter of the appeal till the disposal of an application for stay. If an application for 3 stay is filed within the time indicated above the authority shall make all endeavour to dispose of the same as expeditiously as possible without granting unnecessary adjournment to either of the parties. The authorities are further expected to dispose of the appeal as expeditiously as possible without granting unnecessary adjournment and preferably within eight weeks from the date of the communication of this order.
For abundant precaution it is hereby made clear that the authorities, while considering an application for stay in the appeal, shall not be swayed by the fact that this Court has passed an interim order and shall be free to decide the same without being influenced by any observation made herein, in accordance with law.
Needless to mention that the writ petition is disposed of at the motion stage and therefore the allegations contained in the writ petition shall not be deemed to have been admitted by the respondents.
(HARISH TANDON, J.) sg2