9911796707
TMI Blog2013 (11) TMI 1485X X X X Extracts X X X X X X X X Extracts X X X X ..... without waiting for the outcome of the Stay Application filed by the assessee before this Tribunal which was listed for today i.e. 22.11.2013. Thus, the A.O has taken the action which is in derogation and contravention of the various decisions of Hon'ble Jurisdiction High Court because the action of the A.O contradicts the basic principles laid down in the decisions viz. i) that the A.O has taken the coercive action before the expiry of time of filing the appeal against the order of the CIT(A) ii) the action was taken even prior to the disposal of the Stay Application of the assessee iii) no prior notice was given to the assessee before taking the recovery action u/s 226(3). The Ld. Senior Counsel has contended that the assessee is a authority setup under Maharashtra Housing and Area Development Act with view to solve the acute shortage of housing problem in the State. He has referred Section 1A of the Maharashtra Housing and Area Development Act, 1976 and submitted that the assessee has been setup for giving the effect to the policy of the State towards securing the principle specified under Article 39 of the Constitution of India and the execution of proposals, plans or projects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred the decision in case of UTI Mutual Fund Vs ITO (supra) and submitted that the Hon'ble High Court has again reiterated the guidelines which should be followed in the pending cases. He has then referred the decision of this Tribunal in case of RPG Enterprises Ltd. Vs DCIT (supra) and submitted that in the similar facts the Tribunal has directed the Revenue Authorities to refund the amount recovered by the A.O by misusing his powers without waiting the outcome of the Stay Application or the time period for filing the appeal against the order of the CIT(A). Similarly, in case of Maharashtra State Electricity Board Vs JCIT (supra) the Tribunal has again directed the Revenue Authorities to refund the amount which were collected without giving the sufficient opportunity and waiting till the hearing of the Stay Application filed by the assessee. On the proposition of service of notice prior to recovery u/s 226(3), the Ld. Senior Counsel has submitted that in case of Purnima Das Vs Union of India and Others (supra) the Hon'ble Calcutta High Cout has held that the copy of notice shall be forwarded to the assessee at his last address known to the A.O and such notice has to be served befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the assessee. Further the assessee has filed a writ petition against the recovery of tax which is pending in the Hon'ble High Court. The Ld. D.R has further submitted that the A.O has complied with the provision and conditions prescribed u/s 226(3) of the Income Tax Act by serving the copy of the notice whereby the recovery has been affected. In rebuttal the Ld. Senior Counsel has submitted that though the assessee has filed a writ petition in the High Court but same has not come up for hearing therefore in view of the various decisions the action of the A.O is not sustainable. He has referred the letter dated 13.11.2013 whereby the assessee has informed the Assessing Officer that the assessee has not received the impugned order passed by the CIT(A) and subsequently the assessee would like to pursue the course of second appeal. The assessee has also brought to the notice to the A.O the directions of the Hon'ble High Court in case of UTI Mutual Fund Vs ITO 345 ITR 71. Despite the assessee's letter dated 13.11.2013 the A.O has taken a coercive action by recovery the entire tax amount from the bank of the assessee. 5. Having considered the rival submissions and careful perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y entire amount recovered by encashing bank guarantees to the petitioners within 10 days from today. On receipt of the said amount by the petitioners, they shall execute bank guarantee in favour of the Collector of Central Excise within tow weeks thereafter. It is also made clear that until disposal of the stay application bank guarantee will continue and in the event if the Tribunal rejects the application for stay, the said order shall not be executed for a period of two weeks from the date of its service on the petitioners." 6. It has been observed by the Hon'ble High court that the action of the Central Excise Authorities encashing the bank guarantees before expiry of the statutory period of filing the appeal was highly improper. Similarly, in the case of Mahindra & Mahindra Ltd. Vs Assessing Officer (supra) the Hon'ble High Court has taken a serious view of the action of the taxing authority by observing in para 9 as under: "9. Entire action of the respondent Nos. 1 & 2 shocks our judicial conscience. Rule of law has been given a total go-bye and wilfully ignored. The Income Tax Authorities have acted in a high handed manner. The impugned action is prima facie ab-initio- voi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee with the protection of the Revenue." 8. Thus, it is clear that the Income Tax Officer being a quasi judicial authority should observed the parameters which are laid down by the Hon'ble High Court in various decisions and reasserted in the case of UTI Mutual Fund Vs ITO (supra). A similar view has been taken by this Tribunal in the case of RPG Enterprises Ltd. Vs DCIT as well as in case of Maharashtra State Electricity Board Vs JCIT. Thus, in view of the above judicial principles we hold that the A.O has misused his powers and the action of recovery from the bank amount of the assessee is a gross violation of the directions as well as the basic rule of law and principle of natural justice. Accordingly, we direct the Revenue to refund the entire amount of Rs. 159,84,03,720/- to the assessee within 10 days from the dated of receipt of this order. 9. As regards the stay of the recovery of the demand since the assessee has already filed a writ petition in the High Court and the matter of stay of demand is subjudice before the Hon'ble High Court therefore the judicial propriety and discipline demand that this Tribunal should not venture into the subject matter which is subjudice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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