1 In High Court of Judicature at Madras Dated : 09.10.2015 Coram : Honourable Mr.Justice V.RAMASUBRAMANIAN and Honourable Mr.Justice T.MATHIVANAN Writ Appeal No.363 of 2015 and M.P.No.1 of 2015 M/s.Jyothy Laboratories Ltd. (as transferee company into which M/s. Henkel India Limited has merged) rep.by its Manager Mr.Bakthavatchalam,K ...Appellant Vs 1.The Deputy Commissioner of Income Tax, Large Tax Payer Unit-II, 1775, Jawaharlal Nehru Inner Ring road, Anna Nagar, Western Extension, Chennai-101. 2.The Joint Commissioner of Income Tax, Large Tax Payer Unit-II, 1775, Jawaharlal Nehru Inner Ring road, Anna Nagar, Western Extension, Chennai-101. 3.The Commissioner of Income Tax, Large Tax Payer Unit-II, 1775, Jawaharlal Nehru Inner Ring road, Anna Nagar, Western Extension, Chennai-101. ...Respondents APPEAL under Clause 15 of Letters Patent against order dated 23.2.2015 made in W.P.No.3145 of 2015. 2 For Appellant : Mr.R.Venkatararaman, SC for Mr.K.Harishankar For Respondents : Mr.T.Pramod Kumar Chopda Judgment was delivered by V.RAMASUBRAMANIAN,J This appeal arises out of dismissal of writ petition filed by appellant herein seeking Mandamus to direct Original and Appellate Authorities of Department of Income Tax to stay disputed outstanding demand of Rs.10 crores pursuant to order dated 28.1.2015 passed under Section 220(6) of Income Tax Act, 1961. 2. Heard Mr.R.Venkataraman, learned Senior Counsel for appellant. Mr.T.Pramod Kumar Chopda, learned Standing Counsel takes notice for respondents. 3. assessment in case of company by name Henkel India Limited relating to assessment year 2010-11 was completed under Section 143(3) read with Section 144C(3) on 28.5.2014. Certain disallowances were made on account of transfer pricing adjustments, loss on sale of assets and amortized claim of VRS. assessee accepted disallowances and did not file any appeal. Thereafter, penalty proceedings under Section 271(1)(c) were initiated and demand of Rs.10 crores was made. assessee moved application for stay after filing appeal. In application under Section 220(6), Assessing Officer passed conditional order directing appellant to pay Rs.1 Crore on or before 10.2.2015; Rs.2 Crores on or before 28.2.2015 and Rs.2 Crores on or before 3 20.3.2015. appellant complied with said conditional order. But, in order under Section 220(6), Assessing Officer also stated that if appeal is not disposed of on or before 30.9.2015, matter may be taken up for review. 4. Without challenging order of Assessing Officer dated 28.1.2015 by filing statutory appeal, appellant filed writ petition in W.P.No.3145 of 2015 simply seeking Writ of Mandamus to direct respondents herein to stay entire demand pursuant to order dated 28.1.2015. After pointing out that appellant failed to challenge conditional order by filing statutory appeal and after pointing out that discretion vested in Assessing Officer was properly exercised in terms of Section 220(6), learned Judge dismissed writ petition by order dated 23.2.2015. It is against said order that above appeal is filed. 5. Mr.R.Venkataraman, learned Senior Counsel appearing for appellant submitted that though statutory appeal has been filed against order in writ petition, his client has complied with order of Assessing Officer dated 28.1.2015. learned Senior Counsel produced challans issued by State Bank of India in proof of having made payment of Rs.5 Crores as per order dated 28.1.2015. 6. Today, grievance of appellant is confined only to one thing. Since regular appeal is not yet disposed of and since by order passed under Section 220(6), Assessing Officer was likely to review 4 conditional order, appellant apprehends that some more levy may be imposed. 7. above grievance of appellant could easily be redressed. As against original assessment completed on 28.5.2014, appellant did not go on appeal. They have accepted all disallowances. Now, what is pending in appeal is only question of penalty. total penalty levied was Rs.10 Crores. Out of said amount, sum of Rs.5 Crores has already been deposited. Therefore, this is fit case where appellant is entitled to have stay till disposal of appeal. One more grievance of appellant is about adverse remarks made by learned Judge in paragraph 15 of order. 8. But, we do not think that these observations will really carry any weight in disposal of appeal by Appellate Authority. 9. Hence, writ appeal is disposed of with following directions : (i) Appellate Authority shall grant benefit of stay to appellant till disposal of appeal and (ii) While deciding appeal, Appellate Authority shall not go by observations made either by this Court or by learned Judge. No costs. Consequently, above MP is closed. (V.R.S.J.) (T.M.J.) 09.10.2015 Internet : Yes 5 V.RAMASUBRAMANIAN,J AND T.MATHIVANAN,J RS To 1.The Deputy Commissioner of Income Tax, Large Tax Payer Unit-II, 1775, Jawaharlal Nehru Inner Ring road, Anna Nagar, Western Extension, Chennai-101. 2.The Joint Commissioner of Income Tax, Large Tax Payer Unit-II, 1775, Jawaharlal Nehru Inner Ring road, Anna Nagar, Western Extension, Chennai-101. 3.The Commissioner of Income Tax, Large Tax Payer Unit-II, 1775, Jawaharlal Nehru Inner Ring road, Anna Nagar, Western Extension, Chennai-101. W.A.No.363 of 2015 and M.P.No.1 of 2015 09.10.2015 M/s. Jyothy Laboratories Ltd. (M/s. Henkel India Limited) v. Deputy Commissioner of Income-tax / Joint Commissioner of Income-tax / Commissioner of Income-tax