TMI Blog2014 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... chment issued by the department - The parties are unison on the fact that out of the total demand a sum of Rs.1 lac have already been paid by the petitioner - While considering the unjust hardship which may be caused to the assessee, the Court shall also bear in mind the interest of the revenue as well - the last date for making the instalment is due on 5th March 2014 the Court to mitigate the situation and to render justice between the parties, directed the assessee to pay a further sum of Rs.1 lac - For such limited purposes, the bank shall allow the assessee to operate the bank account, under attachment – Decided partly in favour of Assessee. - W. P. No. 131 of 2014 - - - Dated:- 3-3-2014 - Harish Tandon,JJ. For the Appellants : Mr. Dipak Shome, Mr. Bijon Majumdar For the Respondent : Md. Nizamuddin ORDER The Court : Assailing the notice issued under section 226(3) of the Income Tax Act, 1961, the petitioner has filed the instant writ petition before this Court. The said notice is sought to be challenged primarily on the ground that before issuing the order of attachment, no prior notice was served on the petitioner. In support of the aforesaid contention r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner to the merits of each application for stay. Which the interest of the Revenue has to be protected, it is necessary for Assessing Officers to realize that fairness to the assessee is an intrinsic element of the quasi-judicial function conferred upon them by law. Applications for stay must be disposed of at an early date. Such applications cannot be kept pending to obviate compliance with the need to evaluate the contentions of the assessee until after monies are recovered using the coercive arm of the law. Appellate authorities must set down time schedules for disposal of stay applications with reasonable expedition. The manner in which recourse has been made to the coercive process of law, leaves much to be desired and we are of the view that the action which was pursued was completely high handed and arbitrary. There could have been absolutely no apprehension that the assessee in the present case was likely to spirit out the monies which were invested in fixed deposit receipts. The assessee is an old trust which carries on welfare activities. Md. Nizamuddin learned advocate for the department is very much vocal in contending that the division bench of the Bombay High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or stay under section 220 (6) of the Act for the assessment year 2007-08 was filed before the said respondent. It appears that on February 11, 2010 the income-tax authorities had issued four notices under section 226(3) of the Act upon the concerned branches of the Indian Overseas bank, Syndicate Bank, Bank of India and Central Bank of India who are the respondents herein. Thereafter, as noted, pursuant to the directions by the income-tax authorities on February 12, 2010 the branch manager of respondent No. 4 debited a sum of Rs.1,66,000 and consequently a debit note was issued. Thereafter, as evident from paragraph 8 of the affidavit-in-opposition filed by the Revenue, on February 15, 2010 copies of the notices under section 226(3) of the Act were served on the petitioner. Now, the question is whether it was proper on the part of the Assessing Officer to attach and debit a sum without serving a copy of the notice of attachment on the assessee. Looking at the language of section 226(3) (iii) of the Act which stipulates that A copy of the notice shall be forwarded to the assessee at his last address known to the (Assessing) Officer . The answer has to be in the negative. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The judgement rendered in the case of Golam Momem (supra) which was not taken note of by the other co-ordinate bench in case of Purnima Das (supra) appears to me to have interpreted the provisions of section 226(3) in consonance with the legislative intend. The section does not postulate that before an action is set into motion, a notice is required to be served on the assessee but what is held is that if such an action is contemplated, the notice should also be served to the assessee and, therefore, this Court finds that the judgement rendered in the case of Golam Momen (supra) depicts the correct proposition of law. In the instant case a special fact is also required to be narrated. The petitioner appears to have carrying on the business as a civil contractor and have purchased a flat on a hire purchase basis. Since a defaulter was committed, a proceeding was initiated at the instance of the financier which went up to the Supreme Court. The Supreme Court by an order dated 7th May 2012 directed the petitioner to pay the money in instalments in terms of the revised schedule agreed by the parties. According to the petitioner they have to pay Rs.1,36,243/- per month in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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