TMI Blog2020 (4) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... iated and the amount was recovered without issuing any notice to the appellant, as required under section 226(3) ? - HELD THAT:- No hesitation to hold that the attachment and recovery was effected at a great haste, without taking into consideration of the parameters enshrined in all the decisions cited as above. Further, we take note of the fact that the issue pertaining to liability of the appellant bank for payment of income tax, remains now settled through the decision of a Full Bench of this court in Mavilayi Service Co-operative Bank v. CIT [ 2019 (3) TMI 1580 - KERALA HIGH COURT] . It is held therein that, by the reason of sub-section (4) of section 80P the Assessing Officer has to conduct an enquiry into the factual situations with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the 2nd respondent. Realization of the Bank Guarantee shall be made only after communicating the appellate order to the appellant society. The refund shall be effected within a period of 2 weeks from the date of furnishing of the Bank Guarantee. The direction issued by the learned Single Judge in the impugned judgment with respect to disposal of the appeal shall survive. - WA NO. 2488 OF 2019 - - - Dated:- 20-1-2020 - C. K. Abdul Rehim And T.V. Anil Kumar, JJ. T.R. Harikumar and Adithya Rajeev, Advs. for the Appellant. Christopher Abraham for the Respondent. JUDGMENT 1. The writ petitioner - Andoorkonam Service Co-operative Bank Ltd. is the appellant herein, challenging judgment of the Single Judge, dated 03-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaded that the notice to the assessee is a mandate under due process of law, under section 226(3) of the Income-tax Act. Therefore the attachment and recovery of the amount is effected without compliance of such mandate. 4. Learned counsel had drawn our attention to a judgment of a learned Single Judge of this court in Suntec Business Solutions (P.) Ltd. v. Union of India [2015] 58 taxmann.com 294/232 Taxman 367. It was observed therein that, the power conferred under section 226(3) has to be exercised with greatest caution and the provision has to be construed strictly. The power to attach and recover amounts from a third party has to be invoked sparingly, only in the event of the assessee having deliberately evaded recovery and indulg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired under section 226(3)(iii). Subsequently another letter was issued to the assessee on 29-11-2019 informing him about the collection made and about adjustment of the amount recovered against the demand raised. 6. Even though the provisions under section 226(3) insist only for forwarding a copy of the notice to the assessee, the circumstances of each case has to be considered. Here is a case where the recovery was effected on the same day when the notice was issued to the garnishee, that too within 2 days of the amount became due. Mere forwarding of a copy of the notice, after effecting recovery, will not in any way serve the object underlying the legislative intent in introducing sub-section(iii) of section 226(3). This is especiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the activities of the society, in order to satisfy himself to the conclusions arrived at and also as to whether the benefits under section 80 can be extended or not. 9. According to the learned counsel for the appellant, such a verification has not been done in the case. But the learned Standing Counsel appearing for the respondents 1 to 3 had pointed out that, even in the original assessment itself, those aspects were considered by the appellate authority. However, as observed above, recovery from the 4th respondent garnishee bank has been done in a manner depriving the interest of the assessee and without following the guidelines which ought to have been followed in the matter of garnishee attachment and recovery. However, since th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
