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Judgment
On an urgency being made, the case has been put before us pursuant to the administrative order dated 18.3.2019 passed by Hon'ble the Senior Judge.
Mr. Manish Misra, Advocate has accepted notice for opposite parties no. 1 and 2.
Heard Mr. Desh Deepak Chopra, learned counsel for petitioner as well as Mr. Manish Misra, learned counsel for opposite parties.
With the consent of parties' counsel, the writ petition is being disposed of at the admission stage.
The writ petition has been filed seeking direction to opposite parties not to coercively recover the penalty demand for the assessment year 2013-14 and to forthwith release the bank account of the petitioner in pursuance to the notice issued under Section 226 (3) Income Tax Act. The petitioner has also prayed for direction to opposite party no. 2 to consider and decide the petitioner's pending application under Section 154 Income Tax Act dated 23.2.2018 in the light of the CBDT Circular No. 25 of 2015.
Learned counsel for petitioner submits that the penalty of alleged concealment of income under Section 271 (1) (c) Income Tax Act was imposed on the petitioner vide order dated 23.2.2017. The application for stay of demand was rejected by the Assessing Officer vide order dated 28.9.2017. The petitioner thereafter preferred an appeal before the CIT (Appeals II). The said appeal was dismissed vide order dated 13.3.2019.
It is contended by learned counsel for petitioner, Mr. Desh Deepak Chopra, that the petitioner had moved an application under Section 154 Income Tax Act before the Assessing Authority and as per the CBDT circular as well as the various orders of the High Court, the alleged penalty could not have been imposed on the petitioner. It is also contended that the application under Section 154 Income Tax Act is required to be decided within six months, however, in spite of the fact that the said application was filed before the Assessing Authority on 23.2.2018, till date it has not been decided.
It is further contended that the opposite parties in most arbitrary and illegal manner have taken coercive steps to seize the bank accounts of the petitioner. They have taken out an amount of Rs. 2,42,52,405/- from the bank account of the petitioner on 15.3.2019 & 16.3.2019 and other bank accounts having amount of Rs. 25,43,31,516/- have been seized. The petitioner has been put to great difficulty as it cannot make any payment to its suppliers. In case bank accounts of the petitioner are not released, the petitioner will have to shut down the generation plants.
Mr. Manish Misra, learned counsel for opposite parties submits that the opposite parties have to take steps for recovery of the demand after dismissal of the appeal by CIT (A). The opposite parties are fully empowered to take appropriate steps for recovery of the demand in this regard.
Mr. Manish Misra, learned counsel for the opposite parties, on the basis of instructions, submits that on the request of the petitioner four bank accounts of the petitioner have been released today.
It is also submitted that the application under Section 154 is only an application for rectification of mistake and after dismissal of the appeal the said application cannot be decided by the assessing authority as it will amount to review.
We have considered the submissions made by the parties' counsel and gone through the record.
Since the petitioner has a statutory remedy of approaching the ITAT against the order passed by the CIT (A), the petitioner has not yet approached the ITAT, all the pleas raised in the writ petition can very well be taken in the appeal filed before the ITAT, the petitioner can also make an application for interim relief which can be considered by the ITAT, we do not find any reason to grant indulgence.
At this stage, learned counsel for petitioner submits that he will approach the ITAT at the earliest, however, the ITAT may be directed to consider and decide the interim relief application, expeditiously, may be on the same date.
It is also submitted that in the meantime the opposite parties may be directed to consider the request of petitioner for release of the other bank accounts so that the petitioner may be able to make payment to its suppliers and the generation plants may not be shut.
In this view of the matter, the writ petition is finally disposed of with the observation that in case the petitioner prefers an appeal before the ITAT, the same may be considered by the ITAT expeditiously including the application for interim relief which may be considered by the ITAT, if possible, on the date of filing of the appeal.
In the meantime, the petitioner may move an application for release of bank accounts to the opposite parties who may consider the same taking into consideration the difficulties faced by the petitioner and looking to the fact that the petitioner is a Government Corporation involved in the generation of electricity which is an essential commodity.