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2007 (5) TMI 202 - HC - Income TaxStay of the demand - Grant for interim relief - assessed income u/s 143(3) - demand for deposit of the tax and interest - DTAA between India-Finland - entitled to a refund of tax on the basis of the cumulative demands - application for modification - Petitioner relied upon a judgment delivered by the Special Bench of the Tribunal, in the case of the petitioner itself and pertaining to the assessment years 1997-98 and 1998-99, and responded by saying that if the judgment is implemented by the Revenue, the liability of the petitioner would be about Rs. 4.86 crores for the assessment year 2003-04 - HELD THAT:- What has apparently come in the way of the CIT (A) is the impression carried by him (and which has been articulated by learned counsel for the Revenue) that each assessment year has to be treated as independent of the other and, therefore, the CIT (A) took the assessment year 2003-04 by itself and applying the decision of the Special Bench of the Tribunal granted relief to the petitioner by requiring a deposit of only Rs. 4.86 crores. This is, of course, one possible way of looking at the issue. However, it has to be remembered that the State is bound to be fair to those with whom it has to deal with, and to the extent possible, it must avoid any harassment to the assessee public without causing any loss to the exchequer. Therefore, if one looks at the matter in a broader perspective (and there is no reason why we should not), then it would be necessary to take into account the tax liability of the petitioner for the entire period in respect of which the dispute is still alive, that is to say from the assessment year 1997-98 till the assessment year 2003-04. If this is done and an across the board review is taken of the tax liability of the petitioner as well as the amounts paid by the petitioner, as has actually been done by the Tribunal in its order, then the petitioner would be entitled to a refund. On the other hand, if each year is taken separately, then of course there would be a liability against the petitioner for the assessment year 2003-04 but such a narrow or constricted view does not commend itself to us since it would unnecessarily deprive an assessee of good money due to it from the Revenue. Looked at in this larger perspective, we are of the view that the petitioner would be entitled to the relief prayed for since it has, quite clearly, paid more than the amount that is due if the order passed by the Special Bench is implemented. In arriving at this conclusion, we have also taken note of the fact that the order of the Special Bench has not been stayed and is still operative and has in fact been given effect to by the Tribunal itself in its order. Consequently, we issue a writ of mandamus and stay the requirement of the petitioner having to deposit Rs. 4.86 crores till its appeal for the assessment year 2003-04 is heard by the CIT (A). This would necessarily imply that the CIT (A) should hear the appeal of the petitioner for the assessment year 2003-04 without insisting on any deposit. The writ petition is allowed. All pending interim applications are disposed of.
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