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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13185 OF 2024
WRIT PETITION NO.13185 OF 2024
Mahesh Mathuradas Ganatra
Mahesh Mathuradas Ganatra ... ...Petitioner
Petitioner
Centralised Processing Center & Ors. ... ...Respondents
Respondents
_____________________________________________________
Mr. Ruturaj H. Gurjar for Petitioner.
Mr. Akhileshwar Sharma a/w Ms. Shradha Worlikar for Respondents.
Mr. Akhileshwar Sharma a/w Ms. Shradha Worlikar for Respondents.
_____________________________________________________
DATED : 24 February 2025
ORAL JUDGMENT
1. Heard learned counsel for the parties. Heard learned counsel for the parties.
2. Rule. The Rule is made returnable immediately at the request Rule. The Rule is made returnable immediately at the request of and with the consent of the learned counsel for the parties. of and with the consent of the learned counsel for the parties.
3. This petition is filed challenging the recovery of more than This petition is filed challenging the recovery of more than 20% of the tax demand for assessment year 2015-2016 from the 20% of the tax demand for assessment year 2015-2016 from the Petitioner. Petitioner.
4. The Petitioner is an individual and has filed his return of The Petitioner is an individual and has filed his return of income on 28 September 2015 returning income of Rs.56,65,660/-. The income on 28 September 2015 returning income of Rs.56,65,660/-. The said return of income was selected for scrutiny assessment and on 20 said return of income was selected for scrutiny assessment and on 20 December 2017 an assessment order came to be passed under Section December 2017 an assessment order came to be passed under Section 143(3) of the Income Tax Act, 1961 (“the Act”) assessing income at 143(3) of the Income Tax Act, 1961 (“the Act”) assessing income at Rs.1,11,85,520/- and a demand of Rs.37,91,550/- was made. Rs.1,11,85,520/- and a demand of Rs.37,91,550/- was made.
5. The Petitioner filed stay application for assessment year 2015- The Petitioner filed stay application for assessment year 2015- 2016 before the Assessing Officer requesting for stay of the demand 2016 before the Assessing Officer requesting for stay of the demand raised vide order dated 20 December 2017. It is important to note that raised vide order dated 20 December 2017. It is important to note that 2025:BHC-AS:9007-DB prior to making this application for stay, the Petitioner voluntarily had prior to making this application for stay, the Petitioner voluntarily had already deposited 20% of the demand which worked out to already deposited 20% of the demand which worked out to Rs.7,58,310/-. Rs.7,58,310/-.
6. On 6 October 2022, an intimation under Section 143(1) of the On 6 October 2022, an intimation under Section 143(1) of the Act was issued processing return for assessment year 2022-2023 and Act was issued processing return for assessment year 2022-2023 and the refund of assessment year 2022-2023 amounting to Rs.6,05,030/the refund of assessment year 2022-2023 amounting to Rs.6,05,030/was adjusted against the demand for assessment year 2015-2016. was adjusted against the demand for assessment year 2015-2016.
7. The assessee’s stay application for assessment year 2015-2016 The assessee’s stay application for assessment year 2015-2016 dated 29 January 2018 was not decided for a period of almost for more dated 29 January 2018 was not decided for a period of almost for more than six years and on 17 April 2024 an order on the stay application than six years and on 17 April 2024 an order on the stay application came to be passed. In the said order, the Assessing Officer admitted that came to be passed. In the said order, the Assessing Officer admitted that 20% of the total demand has already been paid by the assessee and, 20% of the total demand has already been paid by the assessee and, therefore, relying upon Instruction No.1914, the stay was granted for therefore, relying upon Instruction No.1914, the stay was granted for the balance amount of Rs.30,33,240/-. The stay was granted subject to the balance amount of Rs.30,33,240/-. The stay was granted subject to the conditions that the Petitioner shall co-operate in the early disposal the conditions that the Petitioner shall co-operate in the early disposal of the appeal and further the Assessing Officer reserved his right to of the appeal and further the Assessing Officer reserved his right to review this order after expiry of six months. review this order after expiry of six months.
8. It is on the above backdrop that the Petitioner has approached It is on the above backdrop that the Petitioner has approached this Court under Article 226 of the Constitution of India, after this Court under Article 226 of the Constitution of India, after addressing letter dated 14 November 2023, whereby the Petitioner has addressing letter dated 14 November 2023, whereby the Petitioner has objected to the adjustment of refund for assessment year 2022-2023 objected to the adjustment of refund for assessment year 2022-2023 against the demand of assessment year 2015-2016 on the ground that against the demand of assessment year 2015-2016 on the ground that he has already paid 20% of the demand for assessment year 2015-2016 he has already paid 20% of the demand for assessment year 2015-2016 and, therefore, the refund adjustment was not in accordance with law. and, therefore, the refund adjustment was not in accordance with law.
9. Mr. Gurjar, learned counsel for the Petitioner, submitted that Mr. Gurjar, learned counsel for the Petitioner, submitted that the revenue has recovered more than 20% of the demand for which the the revenue has recovered more than 20% of the demand for which the stay has been granted by the Assessing Officer. He submits that the stay has been granted by the Assessing Officer. He submits that the Petitioner voluntarily made payment of 20% amounting to Petitioner voluntarily made payment of 20% amounting to Rs.7,58,310/- on 25 January 2018 even before the stay application was Rs.7,58,310/- on 25 January 2018 even before the stay application was filed on 29 January 2018. Inspite of such a payment, the revenue filed on 29 January 2018. Inspite of such a payment, the revenue adjusted the refund of assessment year 2022-2023 on 6 October 2022 adjusted the refund of assessment year 2022-2023 on 6 October 2022 amounting Rs.6,05,030/-. Therefore, the department has recovered amounting Rs.6,05,030/-. Therefore, the department has recovered excess of Rs.6,05,030/- and therefore, the revenue should be directed to excess of Rs.6,05,030/- and therefore, the revenue should be directed to refund the said amount being contrary to their own stay order dated 17 refund the said amount being contrary to their own stay order dated 17 April 2024. April 2024.
10. Mr. Sharma, learned counsel for the Respondents, defended Mr. Sharma, learned counsel for the Respondents, defended the action of the Respondents and submitted that the refund for the action of the Respondents and submitted that the refund for assessment year 2022-2023 was adjusted prior to the stay order being assessment year 2022-2023 was adjusted prior to the stay order being passed for assessment year 2015-2016 and there is no provision in the passed for assessment year 2015-2016 and there is no provision in the system to give a credit of Rs.6,05,030/-. He has relied upon the system to give a credit of Rs.6,05,030/-. He has relied upon the affidavit-in-reply filed by one Mr. Sanjay Kamble dated 24 February affidavit-in-reply filed by one Mr. Sanjay Kamble dated 24 February
2025.
2025.
11. We have heard learned counsel for the Petitioner and We have heard learned counsel for the Petitioner and Respondents. Respondents.
12. At the outset, we wish to deprecate the practice of the At the outset, we wish to deprecate the practice of the Respondents in not adjudicating the stay application for more than six Respondents in not adjudicating the stay application for more than six years. The stay application was filed on 29 January 2018 for assessment years. The stay application was filed on 29 January 2018 for assessment year 2015-2016 and the stay order was passed on 17 April 2024. It is year 2015-2016 and the stay order was passed on 17 April 2024. It is almost after a period of more than six years. If the revenue is keen on almost after a period of more than six years. If the revenue is keen on recovery of the 20% of the demand then it is incumbent upon the recovery of the 20% of the demand then it is incumbent upon the Assessing Officer to dispose of the stay application as early as possible Assessing Officer to dispose of the stay application as early as possible so that the interest of the revenue is protected. By delaying the so that the interest of the revenue is protected. By delaying the adjudication of the stay application, it is the interest of the revenue adjudication of the stay application, it is the interest of the revenue which will be affected and therefore, the delay in disposing the stay which will be affected and therefore, the delay in disposing the stay application after almost a period of six years was not justified. application after almost a period of six years was not justified.
13. In any case, in the present matter, the Petitioner himself In any case, in the present matter, the Petitioner himself voluntarily even before the application for stay was filed deposited 20% voluntarily even before the application for stay was filed deposited 20% of the demand of Rs.7,58,310/- and thereafter made a request for the of the demand of Rs.7,58,310/- and thereafter made a request for the stay of the balance demand. In such scenario, when an assessee stay of the balance demand. In such scenario, when an assessee voluntarily deposits 20% even before the stay application is decided and voluntarily deposits 20% even before the stay application is decided and which is in accordance with Instruction No.1914 of the revenue, the which is in accordance with Instruction No.1914 of the revenue, the least which could have been expected from the Respondents is not to least which could have been expected from the Respondents is not to adjust the refund for assessment year 2022-2023 against the demand adjust the refund for assessment year 2022-2023 against the demand for assessment year 2015-2016 although the delay in adjudication of for assessment year 2015-2016 although the delay in adjudication of the stay order is not attributable to the Petitioner. the stay order is not attributable to the Petitioner.
14. The Respondents cannot take the advantage of their own The Respondents cannot take the advantage of their own delay in disposing the stay application. The effect of adjustment of delay in disposing the stay application. The effect of adjustment of refund for assessment year 2022-2023 while processing the return on 6 refund for assessment year 2022-2023 while processing the return on 6 October 2022 would be that the Petitioner has made a payment of October 2022 would be that the Petitioner has made a payment of Rs.13,63,340/- against the demand for assessment year 2015-2016 and Rs.13,63,340/- against the demand for assessment year 2015-2016 and the said amount of Rs. the said amount of Rs.13,63,340/- 13,63,340/- is in excess of 20% of the demand is in excess of 20% of the demand which the Respondents have directed the Petitioner to pay vide order which the Respondents have directed the Petitioner to pay vide order dated 17 April 2024. dated 17 April 2024.
15. In our view, when this was pointed out even before the stay In our view, when this was pointed out even before the stay order was passed by the Petitioner vide letter dated 14 November 2023, order was passed by the Petitioner vide letter dated 14 November 2023, the Respondents ought to have refunded the said amount of the Respondents ought to have refunded the said amount of Rs.6,05,030/- either on the Petitioner making application dated 14 Rs.6,05,030/- either on the Petitioner making application dated 14 November 2023 or at least while passing the stay order on 17 April November 2023 or at least while passing the stay order on 17 April
2024. Non consideration of this adjustment while arriving at the 20%
2024. Non consideration of this adjustment while arriving at the 20% outstanding demand for assessment year 2015-2016 is unjustified outstanding demand for assessment year 2015-2016 is unjustified moreso in the present case when the assessee himself moreso in the present case when the assessee himself voluntarily made voluntarily made a payment of 20% much before filing of the stay application for a payment of 20% much before filing of the stay application for assessment year 2015-2016. assessment year 2015-2016.
16. It is also important to note that the appeal of an individual It is also important to note that the appeal of an individual assessee is pending before the first appellate authority i.e. assessee is pending before the first appellate authority i.e. Commissioner of Income Tax (Appeal) since 2018 and more than six Commissioner of Income Tax (Appeal) since 2018 and more than six years there has been no hearing by the Commissioner (Appeal). Even years there has been no hearing by the Commissioner (Appeal). Even delay in disposing the appeal without any justifiable cause would be delay in disposing the appeal without any justifiable cause would be against the interest of the revenue. In this connection, it is important to against the interest of the revenue. In this connection, it is important to note that provision of Section 250(6A) of the Act which states that note that provision of Section 250(6A) of the Act which states that every appeal filed before the first appellate authority where it is possible every appeal filed before the first appellate authority where it is possible may be heard and decided within a period of one year from the end of may be heard and decided within a period of one year from the end of the financial year in which such appeal is filed. This provision was the financial year in which such appeal is filed. This provision was introduced with effect from 1 June 1999 and although it is a directory introduced with effect from 1 June 1999 and although it is a directory provision, in the absence of any justifiable reason for not disposing the provision, in the absence of any justifiable reason for not disposing the appeal filed before the CIT (A) for a period of more than six years same appeal filed before the CIT (A) for a period of more than six years same would run contrary to the objective for which Section 250(6A) has been would run contrary to the objective for which Section 250(6A) has been introduced. We hope that the Commissioner (Appeal) would dispose of introduced. We hope that the Commissioner (Appeal) would dispose of this appeal as expeditiously as possible. this appeal as expeditiously as possible.
17. In view of above, we pass the following order:- In view of above, we pass the following order:- O R D E R O R D E R (i)
(i) Respondent to refund sum of Rs.6,05,030/- being excess
Respondent to refund sum of Rs.6,05,030/- being excess adjustment made against the demand for assessment year adjustment made against the demand for assessment year 2015-2016 within a period of four weeks from the date of 2015-2016 within a period of four weeks from the date of uploading of the present order. uploading of the present order.
(ii) Petitioner to make an application to the first appellate
(ii) Petitioner to make an application to the first appellate authority for taking up his appeal for hearing and if such authority for taking up his appeal for hearing and if such an application is made, the Commissioner (Appeal) an application is made, the Commissioner (Appeal) would hear and decide the appeal keeping in mind the would hear and decide the appeal keeping in mind the provisions of Section 250(6A) of the Act. provisions of Section 250(6A) of the Act. (iii)
(iii) The concerned Commissioner (Appeal) to dispose the
The concerned Commissioner (Appeal) to dispose the Petitioner’s appeal as expeditiously as possible preferably Petitioner’s appeal as expeditiously as possible preferably by 31 May 2025. by 31 May 2025. (iv)
(iv) Respondent No.5 to investigate the reasons for the delay
Respondent No.5 to investigate the reasons for the delay by the CIT (Appeal) in disposing of the appeal which is by the CIT (Appeal) in disposing of the appeal which is pending since January 2018. After completing the pending since January 2018. After completing the enquiry / investigation steps to be taken for addressing enquiry / investigation steps to be taken for addressing the timely disposal of the appeal keeping in mind the the timely disposal of the appeal keeping in mind the objective of Section 250(6A). objective of Section 250(6A).
18. The Rule is made absolute in the above terms. No order as to The Rule is made absolute in the above terms. No order as to costs. costs. (Jitendra Jain, J.) (M. S. Sonak, J.) Designation: PA To Honourable Judge