1/7 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 09TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION Nos.40842-872/2017 (T-IT) BETWEEN:
SRI. B.V. SAMPATH S/O VALAPPA AGED ABOUT 68 YEARS No.16, 28TH CROSS, GEETHA COLONY JAYANAGAR 4TH BLOCK, BENGALURU-560019.
(BY SRI. ANAND KUMAR M, ADV.,) AND:
1. THE COMMISSIONER OF INCOME TAX (APPEALS-II), BENGALURU-560001.
…PETITIONER 2. THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2(2), BENGALURU-560001.
3. THE TAX RECOVERY OFFICER (CENTRAL) 3RD FLOOR, CENTRAL REVENUE BUILDING QUEEN’S ROAD, BANGALORE-560001.
…RESPONDENTS (BY SRI. JEEVAN J. NEERALGI, ADV.,) THESE W.Ps. ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE TWO NOTICES DATED 29.8.2017 ISSUED BY R-3 AT ANNEX-J & K RESPECTIVELY & ETC., THESE W.Ps. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr. Anand Kumar M, Adv. for Petitioner Mr. Jeevan J. Neeralgi, Adv. for Respondents 1. The petitioner-Mr.B.V.Sampath-assessee under the Income Tax Act, has approached this Court with the following prayers:-
“(i) Issue a writ of certiorari or any other appropriate writ or order to quash the two notices dated 29.8.2017 in F No.81/BVS/TRO/BNG/2017-18 issued by the 3rd respondent produced at Annexures-J & K respectively.
(ii) Issue any other writ or direction as this Hon’ble Court may deem fit in the facts and circumstances of the case”.
2. The matter was remitted back by the Income Tax Appellate Tribunal, Bangalore Bench ‘B’, by the order Annexure-A dated 16.06.2017 for the Assessment Year 2008-09, directing the 1st Appellate Authority namely, the Commissioner of Income Tax (Appeals), 11, Bangalore, to decide the stay application of the petitioner pending before him with the following observations:-
“5.3.3. Respectfully following the aforesaid decision of the Hon’ble Karnataka High Court in the case of CIT Vs K. Satish Kumar Singh restore the impugned appeal for the assessment year 2008-09 to the file of the ld CIT (A) for consideration and adjudication on merits thereof, only after examination and verification of the assessee’s claim that he has paid the taxes due on admitted/returned income for the impugned assessment as per the claim made and details filed before us in appellate proceedings. If after examination and verification by the learned CIT(A), it is found that the claims made in the details filed by the assessee that taxes due on returned income for the impugned assessment years is in order, only then the impugned appeal is to be admitted for consideration and adjudication on merits. For the purpose of section 249(4)(a) of the Act, what is to be seen is that whether taxes due on admitted income have been paid by the assesse and this purpose, taxes would not include interest charged u/s 234A, 231B & 234C of the Act. It is ordered accordingly.
5. In the result, the assessee’s appeal for assessment years 2008-09 is treated as allowed for statistical purposes.
Order pronounced in the open Court on 16th June 2017.
Sd/- Sd/-
(LALIET KUMAR) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER”
3. Thereafter, it seems, the learned Commissioner of Income Tax (Appeals), has passed the interim order deciding the stay application of the petitioner-assessee granting him the partial relief with certain conditions. Such an order was passed by the learned Commissioner of Income Tax (Appeals)-11, Bangalore, on 08.09.2017. The relevant extract of the order is quoted below for ready reference:-
“Considering that the assessee was in default, of even the self assessment Tax and had to be recovered by the department and the present appeals pending are in pursuance of ITAT remitting the matter, the assessee is granted stay on further recovery subject to following conditions.
1. The appellant shall ensure that Rent dues till date is made over to the TRO on or before 22.09.2017.
2. The appellant pays Rs.10 lakhs per month on or before 10th of every month commencing from 10th Oct. 2017.
3. Any refund due to the assessee will be adjusted u/s 245 of the IT Act.
4. Provisions of section 220(2) shall apply.
5. Non-Compliance to any of the terms shall results in automatic cancellation of this/Installment scheme.
7. In the result, the appellant shall adhere to the terms & conditions of the Tax Recovery Officer mentioned above.
Sd/- (PRADEEP KUMAR) COMMISSIONER OF INCOME TAX (APPEALS)-11, BANGALORE”.
4. In view of the aforesaid, the submission of the learned counsel for the petitioner that the Tax Recovery Officer is taking coercive action against the petitioner cannot be believed. If the petitioner-assessee has given an Undertaking to comply with the conditions imposed by the learned Commissioner of Income Tax (Appeals)- 11, Bangalore, in the said order dated 08.09.2017 and actually is complying with the same, the Tax Recovery Officer being the lower Authority cannot be expected to go beyond the order passed by the higher Appellate Authority namely, the Commissioner of Income Tax (Appeals)-11, Bangalore.
5. If the petitioner-assessee wants any modification or clarification of the said interim order passed on the stay application of the petitioner-assessee by the learned Commissioner of Income Tax (Appeals)- 11, Bangalore, it is for the petitioner-assessee to approach the said concerned Appellate Authority only.
6. The same does not leave any scope for further interference in the matter at this stage by this Court.
7. The petitions are accordingly disposed of with the aforesaid liberty and direction to the petitioner. No costs.
Sd/- JUDGE Srl.