TMI Blog2010 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... y, respondent No. 2 (for short "the said respondent") and has prayed for refund of Rs. 1,66,000 appropriated by the said respondent from the current account No. 659 maintained by M/s. P. D. Enterprises with the Indian Overseas Bank, Chandannagar Branch, respondent No. 4. Incidentally, the pro forma respondent No. 8 is a partnership firm in which the petitioner is a partner. 2. The facts relevant for adjudication are that for the assessment year 2007-08 the petitioner had filed her income-tax return. The return was scrutinized. OnDecember 24, 2009assessment order under section 143(3) of the Act was passed by the said respondent. Aggrieved by the order of assessment, the petitioner preferred appeal before the Commissioner of Income-tax (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was observed that pendency of the writ petition would not prevent respondent No. 3 from hearing out the appeal in accordance with law. Pursuant to the directions affidavits have been filed and are on record. 4. Learned advocate appearing on behalf of the petitioner relying on the statements in the writ petition and in the reply, has submitted that as no copy of notice of attachment was served on her as postulated under section 226(3)(iii) of the Act, the action of the said respondent in issuing the notices of attachment and in debiting a sum of Rs. 1,66,000 from the account maintained with respondent No. 4 is illegal. As evident from paragraph 8 of the affidavit-in-opposition filed by the Revenue, notice was served on the asses-see a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers issued by the income-tax authorities. 7. Learned advocate appearing on behalf of the pro forma respondent No. 8 submits that as the amount has been debited from the account of his client, the firm is seriously prejudiced and appropriate order may be passed directing refund. 8. Admittedly, for the assessment year 2007-08 onDecember 24, 2009order of assessment under section 143(3) of the Act was passed by the said respondent. Being aggrieved, onJanuary 22, 2010the petitioner preferred an appeal before respondent No. 3. Thereafter, onFebruary 11, 2010an application for stay under section 220(6) of the Act for the assessment year 2007-08 was filed before the said respondent. It appears that onFebruary 10, 2010the income-tax authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 226(3)(iii). 10.Moreover, it is evident that the petitioner filed the application for stay onFebruary 11, 2010wherein it was indicated that an appeal had been filed against the assessment order for the assessment year in question. In my view, once onFebruary 11, 2010the factum of filing of appeal was made known to the said respondent, the said respondent ought to have disposed of the stay application without proceeding further with the attachment notices. It is to be noted that section 220(6) of the Act postulates that where an appeal under section 246 or 246A is pending, the Assessing Officer has the discretion, subject to such conditions as he may think fit to impose in the circumstances of the case, to treat the assessee as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Revenue that the said attachment orders were withdrawn on an understanding of the order passed on February 25, 2010 in the writ proceeding cannot be accepted. Hence, as evident, the said attachment notices withdrawn by the said respondent were without any cause. Thus, the four attachment notices under section 226(3) though withdrawn by order dated March 17, 2010 by the said respondent, as a sum of Rs. 1,66,000 was debited illegally on February 12, 2010 without disposing of the stay application and without serving notice as postulated under section 226(3)(iii), the action in debiting the sum cannot be sustained and is, thus, set aside and quashed. The said respondent is directed to credit the said sum of Rs. 1,66,000 with the account o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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