R.K.Venkataraman v. The Asst Commissioner Of Income Tax,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.03.2019 CORAM :
THE HONOURABLE DR. JUSTICE ANITA SUMANTH W.P. Nos.7534 & 7552 of 2019 and W.M.P. Nos.8193, 8198, 8202, 8205 & 8207 of 2019 R.K.Venkataraman ... Petitioner in both writ petitions Vs.
1.The Assistant Commissioner of Income Tax, Central Circle-1(1), Investigation Wing, Room No.320, New No.46, Mahatma Gandhi Road, Nungambakkam, Chennai - 600 034.
2.The Commissioner of Income Tax (Appeals) - 18, 121, Mahatma Gandhi Road, Nungambakkam, Chennai - 600 034.
... Respondents in both writ petitions Common Prayer : Writ Petitions in W.P. Nos.7534 and 7552 of 2019 filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the records on the file of the 1st respondent in PAN: ACPPV4708D and quash the impugned order in F.No.276 & 277/ACPPV4708D/AYs 201617 & 2017-18/ACIT/CC-1(1)/CHENNAI dated 28.02.2019 passed by the 1st respondent rejecting the stay petition filed by the petitioner seeking stay of collection of demand for the Assessment Years 2016-17 and 2017-18, respectively, as illegal, arbitrary and devoid of merit and consequentially directing the 1st respondent to grant stay of all further proceedings, pursuant to the impugned order passed by the respondent in F.No.276 & 277/ACPPV4708D/AYs 2016-17 & 2017-18/ACIT/CC-1(1)/CHENNAI dated 28.02.2019 pending disposal of the appeals preferred by the petitioner before the 2nd respondent.
For Petitioner : Mr.R.Sivaraman for Mr.S.Veeraraghavan in both writ petitions For Respondents: Mr.A.P.Srinivas Standing Counsel in both writ petitions C O M M O N O R D E R The challenge in these writ petitions is to an order passed by the 1st respondent/Assessing Officer, upon an application for stay filed by the petitioner on 11.02.2019. 2.Heard Mr.R.Sivaraman, learned counsel appearing for the petitioner and Mr.A.P.Srinivas, learned Standing Counsel, appearing for the respondents in both the writ petitions. 3.The petitioner is an assessee on the file of the 1st respondent and has suffered an order of assessment for Assessment Years 2016-17 and 2017-18, both dated 31.12.2018. Appeals are stated to have been filed before the Commissioner of Income Tax (Appeals), the 2nd respondent, challenging the aforesaid assessments.
4. While this was so, the 2nd respondent issued a communication dated 05.02.2019 calling upon the petitioner to remit the outstanding disputed demands on or before 11.02.2019. In response thereto, the petitioner filed applications dated 11.02.2019 seeking interim stay of recovery. The applications have been disposed of by impugned order dated 28.02.2019, extracted in entirety below:
'Sub : Petition for stay of collection of disputed demand in the case of Shri.R.K.Venkataraman - ACPPV4708D - AYs 2016-17 & 2017-18 - disposal of - Reg.
Ref : 1.Your letter dated NIL received on 11.02.2019.
**** Please refer to the above.
2.On consideration of your stay petition dated NIL referred to above, it is informed that your stay petition is rejected and you are requested to pay 20% of the disputed demand in terms of the CBDT's Office Memorandum dated 31.07.2017 in F.No.404/72/93 - ITCC, since the appeals filed by you before the CIT(Appeal) are pending. On payment of 20% of the disputed demands
of Rs.3,79,21,487 for A.Y.2016-17 & Rs.2,28,72,512 for A.Y.2017-18 respectively and on furnishing proof for payment of the same, balance demands will be considered for grant of stay subject to certain conditions.
3.You are requested to pay the 20% of the disputed demand on or before 05.03.2019, failing which necessary coercive action for collection of the demand will be taken as per the provisions of Income Tax Act, 1961 without any further notice.'
5.The Assessing Officer is expected, while disposing of a stay application, to go into the existence of a prima facie case, financial stringency faced by the assessee and the balance of convenience in the matter, before coming to a conclusion on the grant of stay on otherwise or the terms to which the assessee is to be put, while granting conditional stay. In the present case, discussion upon the aforesaid factors are conspicuous by their absence.
6. I have had occasion to deal with similar matters, where Assessing Officer have passed cryptic orders while disposing of stay applications and I extract the text of one of my orders in the case of Kannammal v. Income Tax Officer in W.P.No.3849 of 2019, which would be equally applicable to the facts and circumstances of the present case.
'7. The parameters to be taken into account in considering the grant of stay of disputed demand are well settled - the existence of a prima facie case, financial stringency and the balance of convenience. 'Financial stringency' would include within its ambit the question of 'irreparable injury' and 'undue hardship' as well. It is only upon an application of the three factors as aforesaid that the assessing officer can exercise discretion for the grant or rejection, wholly or in part, of a request for stay of disputed demand.
8. In addition, periodic Instructions/Circulars in regard to the manner of adjudication of stay petitions are issued by the Central Board of Direct Taxes (CBDT) for the guidance of the Departmental authorities. The one oft-quoted by the assessee is Office Memorandum F.No.1/6/69/-ITCC, dated 21.08.1969 that states as follows:
'1. One of the points that came up for consideration in the 8th Meeting of the Informal Consultative Committee was that income-tax assessments were often arbitrarily pitched at higher figures and that the
collection of disputed demand as a result thereof was also not stayed in spite of the specific provision in the matter in s. 220(6) of the IT Act, 1961.
2. The then Deputy Prime Minister had observed as under :
".........Where the income determined on assessment was substantially higher than the returned income, say twice the latter amount or more, the collection of the tax in dispute should be held in abeyance till the decision on the appeal provided there were no lapses on the part of the assessees."
3. The Board desire that the above observations may be brought to the notice of all the Income-tax Officers working under you and the powers of stay of recovery in such cases up to the stage of first appeal may be exercised by the Inspecting Assistant Commissioner/Commissioner of Income-tax.'
9. Thereafter, Instruction No.1914 was issued by the CBDT on 21.03.1996 and states as follows:
1. Recovery of outstanding tax demands [Instruction No. 1914 F. No. 404/72/93 ITCC dated 212-1993 from CBDT] The Board has felt the need for a comprehensive instruction on the subject of recovery of tax demand in order to streamline recovery procedures. This instruction is accordingly being issued in supersession of all earlier instructions on the subject and reiterates the existing Circulars on the subject.
2. The Board is of the view that, as a matter of principle, every demand should be recovered as soon as it becomes due. Demand may be kept in abeyance for valid reasons only in accordance with the guidelines given below :
A. Responsibility:
i. It shall be the responsibility of the Assessing Officer and the TRO to collect every demand that has been raised, except the following: (a) Demand which has not fallen due;(b) Demand which has been stayed by a Court or ITAT or Settlement Commission;(c) Demand for which a proper proposal for write-off has been
submitted;(d) Demand stayed in accordance with paras B & C below.
ii. Where demand in respect of which a recovery certificate has been issued or a statement has been drawn, the primary responsibility for the collection of tax shall rest with the TRO.
iii. It would be the responsibility of the supervisory authorities to ensure that the Assessing Officers and the TROs take all such measures as are necessary to collect the demand. It must be understood that mere issue of a show cause notice with no follow-up is not to be regarded as adequate effort to recover taxes. B. Stay Petitions:
i. Stay petitions filed with the Assessing Officers must be disposed of within two weeks of the filing of petition by the tax- payer. The assessee must be intimated of the decision without delay.
ii. Where stay petitions are made to the authorities higher than the Assessing Officer (DC/CIT/CC), it is the responsibility of the higher authorities to dispose of the petitions without any delay, and in any event within two weeks of the receipt of the petition. Such a decision should be communicated to the assessee and the Assessing Officer immediately.
iii. The decision in the matter of stay of demand should normally be taken by Assessing Officer/TRO and his immediate superior. A higher superior authority should interfere with the decision of the AO/TRO only in exceptional circumstances; e.g., where the assessment order appears to be unreasonably highpitched or where genuine hardship is likely to be caused to the assessee. The higher authorities should discourage the assessee from filing review petitions before them as a matter of routine or in a frivolous manner to gain time for withholding payment of taxes. C. Guidelines for staying demand:
i. A demand will be stayed only if there are valid reasons for doing so. Mere filing an appeal against the assessment order will not be a sufficient reason to stay the recovery of demand. A few illustrative situations where stay could be granted are:
It is clarified that in these situations also, stay may be granted only in respect of the amount attributable to such disputed points. Further where it is subsequently found that the assessee has not co-
operated in the early disposal of appeal or where a subsequent pronouncement by a higher appellate authority or court alters the above situation, the stay order may be reviewed and modified. The above illustrations are, of course, not exhaustive. ii. In granting stay, the Assessing Officer may impose such conditions as he may think fit. Thus he may - a. require the assessee to offer suitable security to safeguard the interest of revenue; b. require the assessee to pay towards the disputed taxes a reasonable amount in lump sum or in instalments; c. require an undertaking from the assessee that he will co-operate in the early disposal of appeal failing which the stay order will be cancelled. d. reserve the right to review the order passed after expiry of a reasonable period, say up to 6 months, or if the assessee has not co-operated in the early disposal of appeal, or where a subsequent pronouncement by a higher appellate authority or court alters the above situations; e. reserve a right to adjust refunds arising, if any, against the demand.
iii. Payment by instalments may be liberally allowed so as to collect the entire demand within a reasonable period not exceeding 18 months.
iv. Since the phrase "stay of demand" does not occur in section 220(6) of the Income-tax Act, the Assessing Officer should always use in any order passed under section 220(6) [or under section 220(3) or section 220 (7)], the expression that occurs in the section viz., that he agrees to treat the assessee as not being default in respect of the amount specified, subject to such conditions as he deems fit to impose.
v. While considering an application under section 220 (6), the Assessing Officer should consider all relevant factors having a bearing on the demand raised and communicate his decision in the form of a speaking order.
D. Miscellaneous:
i. Even where recovery of demand has been stayed, the Assessing Officer will continue to review the situation to ensure that the conditions imposed are fulfilled by the assessee failing which the stay order would need to be withdrawn.
ii. Where the assessee seeks stay of demand from the Tribunal, it should be strongly opposed. If the assessee presses his application, the CIT should
direct the departmental representative to request that the appeal be posted within a month so that Tribunal's order on the appeal can be known within two months. iii. Appeal effects will have to be given within 2 weeks from the receipt of the appellate order. Similarly, rectification application should be decided within 2 weeks of the receipt t hereof. Instances where there is undue delay in giving effect to appellate orders, or in deciding rectification applications, should be dealt with very strictly by the CCITs/CITs.
3. The Board desires that appropriate action is taken in the matter of recovery in accordance with the above procedure. The Assessing Officer or the TRO, as the case may be, and his immediate superior officer shall be held responsible for ensuring compliance with these instructions.
4. This procedure would apply mutatis mutandis to demands created under other Direct Taxes enactments also.'
10. Instruction 1914 was partially modified by Office Memorandum dated 29.02.2016 taking into account the fact that Assessing Officers insisted on payment of significant portions of the disputed demand prior to grant of stay resulting in extreme hardship for tax payers. Thus, in order to streamline the grant of stay and standardize the procedure, modified guidelines were issued which are as follows:
'.......
(A) In a case where the outstanding demand is disputed before CIT (A), the assessing officer shall grant stay of demand till disposal of first appeal on payment of 15% of the disputed demand, unless the case falls in the category discussed in pars (B) hereunder. (B) In a situation where, (a) the assessing officer is of the view that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount higher than 15% is warranted (e.g. in a case where addition on the same issue has been confirmed by appellate authorities in earlier years or the decision of the Supreme Court /or jurisdictional High Court is in favour of Revenue or addition is based on credible evidence collected in a search or survey operation, etc.) or,
(b) the assessing officer is of the view that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount lower than 15% is warranted (e.g. in a case where addition on the same issue has been deleted by appellate authorities in earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of the assessee, etc.), the assessing officer shall refer the matter to the administrative Pr. CIT/ CIT, who after considering all relevant facts shall decide the quantum/ proportion of demand to be paid by the assessee as lump sum payment for granting a stay of the balance demand.'
11. Instruction 1914 was further modified by Office Memorandum bearing number F.No.404/72/93 - ITCC dated 31.07 2017 as follows:
'OFFICE MEMORANDUM F. No. 404/72/93-ITCC dated 31.07.2017 Subject: Partial modification of Instruction No. 1914 dated 21.3.1996 to provide for guidelines for stay of demand at the first appeal stage.
Reference: Board's O.M. of even number dated 29.2.2016 Instruction No. 1914 dated 21.3.1996 contains guidelines issued by the Board regarding procedure to be followed for recovery of outstanding demand, including procedure for grant of stay of demand. Vide O.M. N0.404/72/93-ITCC dated 29.2.2016 revised guidelines were issued in partial modification of instruction No 1914, wherein, inter alia, vide para 4 (A) it had been laid down that in a case where the outstanding demand is disputed before CIT(A), the Assessing Officer shall grant stay of demand till disposal of first appeal on payment of 15% of the disputed demand unless the case falls in the category discussed in para (B) thereunder. Similar references to the standard rate of 15% have also been made in succeeding paragraphs therein.
2. The matter has been reviewed by the Board in the light of feedback received from field authorities. In view of the Board's efforts to contain over pitched assessments through several measures resulting in fairer and more reasonable assessment orders, the standard rate of 15% of the disputed demand is found
to be on the lower side. Accordingly. it has been decided that the standard rate prescribed in O.M. dated 29.2.2016 be revised to 20% of the disputed demand, where the demand is contested before CIT(A). Thus all references to 15% of the disputed demand in the aforesaid O.M dated 29.2.2016 hereby stand modified to 20% of the disputed demand. Other guidelines contained in the O.M. dated 29.2.2016 shall remain unchanged.
These modifications may be immediately brought to the notice of all officers working in your jurisdiction for proper compliance.'
12. The Circulars and Instructions as extracted above are in the nature of guidelines issued to assist the assessing authorities in the matter of grant of stay and cannot substitute or override the basic tenets to be followed in the consideration and disposal of stay petitions. The existence of a prima facie case for which some illustrations have been provided in the Circulars themselves, the financial stringency faced by an assessee and the balance of convenience in the matter constitute the 'trinity', so to say, and are indispensable in consideration of a stay petition by the authority. The Board has, while stating generally that the assessee shall be called upon to remit 20% of the disputed demand, granted ample discretion to the authority to either increase or decrease the quantum demanded based on the three vital factors to be taken into consideration.'
7. In the light of observations in the case of Kannammal as extracted above and seeing as the impugned order in the present case is also bereft of reasoning, I am constrained to set aside the same.
8.The petitioner will appear before the respondent Assessing Officer on 02.04.2019 along with copy of his stay application as well as all materials in support of the request for stay and the application shall be disposed of within two weeks from 02.04.2019, i.e on or before 16.04.2019. It is brought to my attention that, subsequent to the passing of the impugned order, notices under Section 226(3) of the Income Tax Act, 1961 have been issued to Karur Vysya Bank, Valasaravakkam Branch, Axis Bank, Virugambakkam Branch, City Union Bank, Mandaveli Branch, HDFC Bank, Saligramam Branch, Indian Bank, Ayanavaram and Perambur Branches, all dated 06.03.2019 attaching the accounts of the petitioner therein. The attachments will continue, subject to the orders passed by the 2nd respondent in the stay
application and the Banks shall not appropriate any balance until orders are passed in the stay application. Status quo, as on date to be maintained in regard to further recovery, till 16.04.2019 or date of order to be passed in the stay application, whichever is earlier.
9.The writ petitions are disposed of on the above terms. No costs. Consequently, connected Miscellaneous Petitions are closed.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To 1.The Assistant Commissioner of Income Tax, Central Circle-1(1), Investigation Wing, Room No.320, New No.46, Mahatma Gandhi Road, Nungambakkam, Chennai - 600 034.
2.The Commissioner of Income Tax (Appeals) - 18, 121, Mahatma Gandhi Road, Nungambakkam, Chennai - 600 034.
+1cc to Mr.A.P.Srinivas, Advocate sr.no.29978 +1cc to Mr.S.Veeraraghavan, Advocate sr.no.29972 W.P. Nos.7534 & 7552 of 2019 and W.M.P. Nos.8193, 8198, 8202, 8205 & 8207 of 2019 pa(co) nr 29/03/2019