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Madras High CourtWP/6669/2020disposed of

Mr. Jothi Swaminathan Kalyanalumar v. The Assistant Commissioner Of Income Tax

2020-03-16Honourable Mr Justice R. Mahadevan3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 16.03.2020

CORAM

THE HON'BLE MR.JUSTICE R.MAHADEVAN W.P.No.6669 of 2020 and W.M.P.Nos.7908 & 7909 of 2020 Jothi Swaminathan Kalyanakumar C-64, 1st Main Road, Anna Nagar Chenni 600 102 PAN No.AALPK7836P ... Petitioner Vs.

1.The Assistant Commissioner of Income Tax Non-Corporate Circle 7(1) Income Tax Department Mahatma Gandhi Road Chennai 600 034 2.The Commissioner of Income Tax (Appeals)-7 Income Tax Department Mahatma Gandhi Road Chennai 600 034 ... Respondents Prayer: Petition filed under Article 226 of The Constitution of India praying to issue a writ of Certiorarified Mandamus, calling for the records of the 1st respondent in PAN No.AALPK7836P and quash the Impugned Letter No.ITBA/COM/F/17/ 2019-20/1024774781(1) dated 06.02.2020 passed by the 1st Respondent for AY 2012-13 and consequential stay of recovery of the tax pending disposal of the appeal before the 2nd Respondent filed under acknowledgement number 294763060230120 dated 23.01.2020.

For Petitioner :

Mr.Arun Kurian Joseph For Respondents :

Mrs.Hema Muralikrishnan Standing Counsel 1/3

ORDER

According to the petitioner, he is an Income Tax Assessee. He had filed his returns for the assessment year 2012-13 on 28.07.2012 admitting a total income of Rs.3,56,08,020/-. After scrutiny of the same, the first respondent passed an assessment order under Section 143(3), making an addition of Rs.93,81,710/-, considering the issue of long-term and shortterm capital arising from the joint development of property in Arumbakkam and also taking note of the joint development agreement and the area of share transferred to the developer. Challenging the said assessment order, the petitioner preferred an appeal to the second respondent, who vide order dated 03.11.2016, partly allowed the appeal by reducing the addition to Rs.

85,38,658/-, against which, the department filed an appeal before the Tribunal, which ended in dismissal in favour of the petitioner. When the things stood thus, on 28.02.2019, the first respondent issued a notice under Section 148 stating that he had reason to believe that the petitioner's income for the assessment year 2012-13 had escaped assessment and hence, it was proposed to reassess the income and the petitioner was called upon to file his returns. Accordingly, the petitioner filed his returns on 13.03.2019. Thereafter, the assessment was reopened and the reassessment order was passed on 27.12.2019, wherein addition was made under short-term capital gains and long-term capital gains and the tax was determined at Rs.1,45,78,610/-. Aggrieved over the same, the petitioner filed an appeal before the second respondent on 25.01.2020.

While so, the first respondent, vide communication dated 06.02.2020, directed the petitioner to pay 20% of the disputed tax amount, which works out to Rs.29,15,722/-, treating him as "Assessee in default". Hence, the petitioner has filed this writ petition to quash the said communication dated 06.02.2020 issued by the first respondent and consequentially, stay the recovery of the tax till the disposal of the appeal by the second respondent. 2.

Though the petitioner raised many grounds assailing the impugned communication issued by the first respondent, the learned counsel for the petitioner restricted the same to the extent of seeking a direction to the second respondent to dispose of the appeal filed by the petitioner as against the reassessment order within a time frame to be stipulated by this Court, for which, the learned standing counsel appearing for the respondents has no serious objection.

3.Considering the facts and circumstances of the case and having regard to the submissions now made by the learned counsel 2/3

on either side, this Court is inclined to modify the order passed by the first respondent vide communication dated 06.02.2020 and give appropriate direction to the second respondent for disposal of the appeal filed by the petitioner. 4.Accordingly, the order passed by the first respondent vide communication dated 06.02.2020 is modified to the effect that the petitioner shall pay a sum of Rs.10,00,000/- to the first respondent within a period of four weeks from the date of receipt of a copy of this order, failing which, it is open to the first respondent to recover the amount as mentioned in the said communication. In the meanwhile, the second respondent shall consider the appeal filed by the petitioner as against the order of reassessment dated 27.12.2019 for the year 2012-13 and pass appropriate orders, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner.

5.This writ petition stands disposed of in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.

-s/d- Assistant Registrar True Copy Sub-Assistant Registrar kas To 1.The Assistant Commissioner of Income Tax Non-Corporate Circle 7(1) Income Tax Department Mahatma Gandhi Road Chennai 600 034 2.The Commissioner of Income Tax (Appeals)-7 Income Tax Department Mahatma Gandhi Road Chennai 600 034 +1 cc ot Mr.Arun kurian Joseph Advocate sr23085 +1 cc to M/s.Hema Muralikrishnan Advocate sr23386 W.P.No.6669 of 2020 and W.M.P.Nos.7908 & 7909 of 2020 aa13/07/2020 3/3