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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF APRIL 2022
BEFORE
THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.14615/2021 (T-IT)
BETWEEN :
M/S YOJAKA (INDIA) PVT LTD REP BY ITS MANAGING DIRECTOR SRI JAGADISH BALOOR D NO 3-28/432ED FLOOR ABCO TRADE CENTER MANGALORE – 575 006 PAN AAACY 18520. ... PETITIONER (BY SMT. VANAJA M. R, ADVOCATE)
AND :
THE ASST. COMMISSIONER OF INCOME-TAX CIRCLE-1(1) NANDI GUDDA ROAD ATTAVARA MANGALORE – 575 001. ... RESPONDENT
(BY SRI. JEEVAN J. NEERALAGI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE DIRECTIONS FOR WITHDRAWING THE ORDER/NOTICE ISSUED BY THE RESPONDENT DATED 23.07.2021 ANNEXURE-A; OR DIRECT THE RESPONDENT TO CANCEL THE ORDER IF ANY PASSED FOR ADJUSTING THE REFUND AMOUNTS TOWARDS TAX FOR THE A.Y.
2 2016-17 AS MENTIONED IN HIS LETTER DATED 23.07.2021 ANNEXURE-A; AND ISSUE DIRECTION TO 1.R1 CONSIDER THE REQUEST 15 PERCENT OF THE TAX LIABILITY AS DEPOSIT FOR THE A.Y.2016-17 AS THE APPEAL IS PENDING 2.RELEASE OR ADJUST A SUM OF RS.1,27,78,467 TOWARDS VIVAD SE VISHWAS SCHEME FROM THE REFUND AMOUNT DUE FROM THE INCOME TAX DEPARTMENT.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
The petitioner has sought for directions to the respondent to withdraw the order/notice dated 23.07.2021 (Annexure-A) issued by the Assessing Officer informing the petitioner that the petitioner’s request for adjustment of dues under Vivad se Vishwas Scheme [the Scheme] and the refund cannot be accepted. The petitioner has also sought for certain other consequential reliefs.
This Court on 28.09.2021, considering the petitioner’s application for modification of the interim order granted on 25.08.2021, has issued certain
3 directions to the respondent observing that the petitioner would be entitled for certain extension of time. It is now submitted that after this Court’s order dated 28.09.2021, the petitioner is permitted refund and the petitioner has deposited the same towards the amount due under the Scheme. It must be observed at this stage that the petitioner has availed benefit under the Scheme for the assessment years 2011-2012 to 2015-2016 and the petitioner’s claim for refund relates to the assessment years 2017-2018 to 2020-2021.
Smt. Vanaja.M.R., learned counsel for the petitioner, submits that with the aforesaid refund and deposit now permitted after this Court’s order dated 28.09.2021, the petitioner’s grievance is two fold: the petitioner would be entitled for interest on the amount refunded and deposited towards the dues under the scheme, and the petitioner’s claim for refund of the amount deposited in excess of 20% for stay in the
4 appeal that is pending before the appellate authority for the assessment year 2016-2017. The learned counsel argues for directions in this regard in this writ petition.
However, Sri. Jeevan J. Neeralgi, learned counsel for the respondent, submits that the petitioner’s request for payment of interest will have to be considered by the Assessing Officer in the peculiarities of the case and insofar as the claim for refund of the amount deposited in excess of 20% for the stay in the pending appeal, the same is considered by the Assessing Officer and therefore, will have to be considered by the Appellate Authority.
In response, Smt. Vanaja M.R submits that the petitioner may be given liberty to approach the Assessing Officer and the Appellate Authority for the respective relief but with necessary protection insofar as the proceedings that could be initiated for the balance
5 outstanding demand as mentioned in the Communication dated 13.08.2021. The learned counsel submits that in response to the petitioner’s request for refund of the amount in excess of 20%, the Assessing Officer vide this Communication has informed the petitioner that the petitioner shall not be treated as an assessee in default till the disposal of the appeal or until 31.03.2022 whichever is earlier. Therefore, the petitioner apprehends initiation of recovery proceedings, and the petitioner must be extended protection until the disposal of the appeal.
These submissions are considered in the light of the undisputed facts. The petitioner must have the liberty to approach the Assessing Officer for the claim of the interest and the same must be examined by the Assessing Officer in accordance with law and in the light of the peculiarities of this case. The petitioner must be at liberty to submit necessary representation
6 with the Assessing officer within four [4] weeks from the date of receipt of a certified copy of this order and if the petitioner files such representation, the Assessing Officer will have to consider the same as aforesaid within a period of six [6] weeks from the date of receipt of the representation.
As regards the petitioner’s request for refund of the amount deposited in excess of 20%, the petitioner must, in the light of the Assessing Officer’s Communication dated 13.08.2021, necessarily approach the Appellate Authority. Even according to the learned counsel for the respondent, the petitioner must have such liberty. If the petitioner’s appeal against the outstanding demand is pending consideration in a pending appeal and if the petitioner has deposited 20% of the same, the petitioner must be entitled for such protection until the disposal of the appeal.
7 The petition stands disposed of with the liberty and the observation as aforesaid.
In view of the disposal of the main petition, I.ANo.1/2021 stands disposed of accordingly.
Sd/-
JUDGE