TMI Blog2017 (6) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal requirements before affecting the recovery. Under the circumstances, the recovery of ₹ 19,22,770/- made by the respondent is declared to be illegal. The respondent has not setup a case that the petitioner is a chronic defaulter, a person who may ultimately not be able to pay the dues if the appeal is dismissed or that there are other assessment or appeals pending, in which sizeable tax demands are held up. - Revenue directed to retain 15% and refund 85% of the amount with 8% interest. - Decided partly in favor of assessee. - Special Civil Application No. 6202 of 2017 - - - Dated:- 8-6-2017 - Mr. Akil Kureshi And Mr. Biren Vaishnav JJ. For the Petitioner : MS VAIBHAVI K PARIKH, ADVOCATE For the Respondent : MR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued a notice dated 06.02.2017 on the petitioner conveying that demand of ₹ 19,22,770/- for the assessment year 201415 has remain unpaid. The petitioner is, therefore, treated as a defaulter for non payment of tax. However, before taking further action, the petitioner was given an opportunity to show cause why action for recovery of the said amount should not be initiated. The petitioner was asked to attend the office of the respondent personally or through a representative on or before 15.02.2017 to state the reasons for non payment of tax. If such non payment was on account of any stay or installment granted or application for stay or installment being pending etc., the petitioner should produce documents in support thereof. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The CBDT Circular dated 29.02.2016 provides that ordinarily when appeal is pending against the order of assessment, recovery should be stayed upon deposit of 15% of the disputed amount. The case of the department on the other hand is that pursuant to notice dated 23.12.2016 under Section 156 of the Act, the petitioner neither deposited the additional tax nor applied to the Assessing Officer or the Appellate Authority for stay pending appeal. The petitioner was thus an assessee in default. 4 Facts are not seriously in dispute. The order of assessment resulting into additional tax demand of ₹ 19,22,770/- Against such order, the petitioner filed appeal before the Appellate Commissioner immediately upon the receipt of the order of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nilaterally, least that was expected of him was to ascertain that the notice was duly dispatched and received by the assessee. If he had exercised such basic care, he would have immediately realised that the notice was wholly redundant and the opportunity granted in the notice was an eyewash. Thus, the respondent affected recovery from the bank account of the petitioner without following due process. It is true that, the petitioner ought to applied to the Assessing Officer or to the Appellate Authority for keeping the additional tax demand in abeyance, which the petitioner did not do. Nevertheless, this would not enable the authorities to ignore the legal requirements before affecting the recovery. 6 Under the circumstances, the recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X
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