TMI Blog2018 (5) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... lsewhere in the country and it is stated that there are several persons employed with them and the hospitals are functioning and there are several senior citizens, who require care and attention, this Court is inclined to grant one more opportunity to the assessee company to show their bonafide and if they do so, this court is inclined to direct the assessee company to once again approach the third respondent for appropriate relief. Since the third respondent, CIT(A), is seized of with the appeal petition, the order passed by the second respondent, being earlier than the order dated 16.03.2018, passed by the third respondent, in my considered view, the order dated 16.03.2018, shall govern the proceedings and not the impugned order dated 06.03.2018. For such reason, it is unnecessary to interfere with the said order dated 06.03.2018 as already the third respondent, before whom the appeal is pending against the assessment, has already passed an order, dated 16.03.2018. W.P. disposed of by directing the petitioner/assessee company to pay 5% of the tax demanded for each of the assessment years - Writ Petition Nos.6040 to 6052 of 2018 and W.M.P.Nos.7441, 7443, 7445, 7447, 7449, 7451 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be initiated. The petitioner filed appeals before the third respondent against the assessment orders on 01.02.2018, and on 02.02.2018, submitted a petition before the second respondent praying for stay of collection of the taxes for the relevant assessment years. In the said petition, it was stated that the company was incorporated several years ago and has been regular in filing the returns of income and payment of substantial taxes; it has got around 120 branches all over India and 5000 employees including Doctors and support staff; every month assessee has to pay salary to the employees and rent at various locations to continue their business and other statutory liabilities such as electricity charges water bills and maintenance of equipment are essential to carry on the services. It was further stated that in the assessment orders, high pitched additions have been made, which could not be anticipated and the assessee is confident of substantial relief in the appeal. The assessee thus, prayed for grant of stay, stating that if stay is not granted, they will be put to extreme hardship and they would find it difficult to run the day-to-day affairs of the company. The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appeal to be taken up for disposal. 8. So far as the Writ Petitions filed by the Director, namely, W.P.Nos.6046 to 6052 of 2018, the facts are more or less identical. The assessment orders were passed under Section 153A of the Act for the assessment years 2010-11 to 2016-17, by orders dated 29.12.2017. Even during the assessment proceedings, the immovable properties of the Directors were attached by separate orders, dated 29.07.2016 and after the assessment was completed on 29.12.2017 and 04.01.2018, order under Section 281B of the Act was passed, provisionally attaching the immovable properties of the company as well as the Directors. As in the case of company, the Managing Director also filed the petitions for rectification of the assessments, dated 22.01.2018 and moved stay petition before the first respondent on 23.01.2018. The petitions for rectification filed by the Managing Director were dismissed by the first respondent, by order dated 30.01.2018. The petitioner approached the first respondent by a separate petition dated 23.01.2018, requesting for stay of the demand, as they are in the process of filing appeal against the assessment orders. The first respondent, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax, [(1991) 191-ITR-179], wherein the Court observed that when an application for rectification filed under Section 154 of the Act is pending, the Tax Recovery Officer should not proceed with the recovery proceedings. The learned Senior counsel further submitted that the assessee company is entitled for a refund for the assessment year 2017-18 to the tune of ₹ 7,42,16,770/-. 10. Mr.G.Rajagopalan, learned Additional Solicitor General of India, assisted by Mr.A.P.Srinivas and Mr.A.N.R.Jayapradhap, learned Standing counsels appearing for the respondent department, submitted that the rectification petitions filed by the petitioner having been rejected by order dated 13.04.2018, the prayer sought for in the Writ Petition has become infructuous, because, the third respondent, the Commissioner of Appeals has passed an order dated 16.03.2018, on the petitioner's stay petition, directing the petitioner to pay 20% of the tax demanded and that order has not been challenged and the Writ Petitions are liable to be dismissed. 11. Without prejudice to the above submission, it is submitted that the stay petitions were considered by the second respondent in a proper manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded tax. The petitioners did not comply with the order nor made any attempt to effect partial compliance, but they moved the second respondent for an identical relief. Complaining that the second respondent did not take action on the petition, they approached this Court and filed the Writ Petitions in W.P.Nos.4784 to 4794 of 2018, challenging the order passed by the Assessing Officer dated 30.01.2018. Unfortunately, the petitioner was not successful before this Court in getting the order set aside and the Court refused to go into the merits of the matter and only directed the second respondent to consider the petition dated 02.02.2018. The second respondent considered the matter and has passed the impugned order increasing the amount to be paid to 30% of the tax demanded. Challenging the same, the Writ Petitions have been filed and roughly about the same time, the petitioner moved the third respondent by way of stay petitions. The third respondent has passed an order on 16.03.2018, directing the petitioner to pay 20% of the tax demanded. Thus, the Court would be justified in coming to a prima facie conclusion that the intention of the petitioner is to drag on the matter and not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lines, which are in force on the date when the petitions are considered, would alone be binding upon the Assessing Officer or the Appellate Authority. The latest of such being the Office Memorandum, dated 31.07.2017, which speaks about over pitched assessments and taking note of the feed back received from the Field Authorities, the CBDT revised the standard rate prescribed in office memorandum, dated 29.02.2016, from 15% to 20% of the disputed demand, where the demand is contested before the Commissioner of Income Tax (Appeals). With regard to the other directions in the office memorandum, dated 29.02.2016, the same were left in-tact. The guidelines issued by the Board, was regarding the procedure to be followed for recovery of outstanding demand, including the procedure for grant of stay of demand. Firstly the instruction states that a demand will be stayed only if there are valid reasons for doing so and mere filing an appeal against the assessment order will not be sufficient to stay of the recovery demand. 20. The Board took note of the fact that the Field Authorities often insisted on payment of very high proportion of the disputed demand before granting stay of the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d respondent is no ground to state that there should be stay of the recovery of the tax demanded. 22. So far as the plea regarding high pitched assessment, it is undoubtedly true that in some of the years, the assessments of the assessee company are high pitched. Nevertheless this Court cannot make a roving enquiry into the same and examine whether the additions made by the Assessing Officer were justified as those are issues to be adjudicated before the CIT(A). However, taking note of the fact that the assessee company has established Eye Hospitals in various parts of the State and elsewhere in the country and it is stated that there are several persons employed with them and the hospitals are functioning and there are several senior citizens, who require care and attention, this Court is inclined to grant one more opportunity to the assessee company to show their bonafide and if they do so, this court is inclined to direct the assessee company to once again approach the third respondent for appropriate relief. Since the third respondent, CIT(A), is seized of with the appeal petition, the order passed by the second respondent, being earlier than the order dated 16.03.2018, pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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