Calcutta High Court (Appellete Side)
Ashok Mondal & Anr vs Income Tax Officer on 11 April, 2012
Author: Indira Banerjee
Bench: Indira Banerjee
1
4.2012 W.P. No. 5410 (W) of 2012
Ashok Mondal & Anr ... Petitioners
-Versus-
Income Tax Officer, Ward -2(2) & Ors.
... Respondents
Mr. Sumit Ghosh, Mr. Rajarshi Chatterjee .. for the petitioners Ms. Soma Chatterjee .. for the respondents The petitioner no.1 carries on business of trading in country spirit as proprietor of M/s. Chungari Pachwai & C.S. Shop at Barakar in District Burdwan.
The petitioner filed his return of income for the Assessment Year 2009- 2010, corresponding to the previous Year 2008-2009, under the Income Tax Act, 1961 on 28th October, 2009.
The case of the petitioner no.1 was processed under Section 143(1) of the Income Tax Act, 1963, but later selected for scrutiny. Notices were issued under Section 143(2) and 142(1) of the Income Tax Act. After hearing, an order of assessment was passed, disallowing expenditure of Rs. 1,09,40,639/- for purchase of country spirit from Asansol Bottling Plant on the ground of alleged violation of Section 40A(3) of the Income Tax Act. Deduction of electricity charges of Rs.4,600/- paid in the name of Sri Kishor Mondal was also disallowed.
The income of the petitioner was assessed at Rs.1,11,78,560/- and net tax to the tune of Rs.48,96,590/- was held to be payable inclusive of interest after deduction of the amount already paid.
2Being aggrieved by the aforesaid order of assessment, the petitioner has filed an Appeal before the Commissioner of Income Tax (Appeal), Asansol on 15th December, 2011. The Appeal is pending. In the meanwhile, the petitioner has been directed to pay the assessed amount.
By a letter dated 12th January, 2012 the Assessing Officer called upon the petitioner to pay 50% of the total demand in terms of the Assessing Officer and the balance in three (3) monthly instalments, failing which the petitioner no.1 would be treated as tax defaulter.
By a cryptic order dated 19th January, 2012, passed under Section 220(6) of the Income Tax Act 1961, the application of the petitioner for not being treated as in default has been rejected.
By an order dated 7th March, 2012 the Commissioner of Income Tax rejected the application of the petitioner no.1 for stay of demand, but gave time to the petitioner no.1 to pay Rs.5 lakhs within 15th March, 2012, and to give their plan for payment of the balance.
In this writ application orders have been sought restraining the respondents from giving effect to the impugned letter dated 12th January, 2012 and the orders under Section 220(6) dated 19th January, 2012 of the Assessing Officer and 7th March, 2012 of the Commissioner of Income Tax and for stay of the demand in full, till the disposal of the appeal pending before the Appellate Authority.
3
From the language and tenor of the order dated 7th March, 2012 it is apparent that the Commissioner of Income Tax, Asansol was inclined to give the assessee an opportunity to make payment of Rs.5 lacs by 15th March, 2012.
Suject to payment of Rs.5 lakhs within five working days from date,the respondents shall not take any coercive action against the petitioners for realization of the demand against the petitioner, till the disposal of the appeal.
The Appellate Authority is directed to dispose of the appeal expeditiously and positively within four weeks from date. The petitioner shall however be given an opportunity of hearing. The petitioners are restrained from selling, transferring, alienating or parting with possession of any of the assets of the petitioner no.1 or from making withdrawal from any of his bank accounts except for the purpose of routine business. It is made clear that no expenditure which is not imperative for the purpose of business in routine course shall be incurred.
The writ application is disposed of with the above directions. Urgent certified photostat copy of this order, if applied for, be supplied to the learned Advocates appearing for the parties, subject to compliance with all requisite formalities.
sg ( Indira Banerjee, J. )