In High Court of Judicature at Madras Dated : 11.9.2017 Coram : Honourable Mr.Justice T.S.SIVAGNANAM Writ Petition No.24309 of 2017 & WMP.Nos.25720 & 25721 of 2017 M/s.S-10 Health Care Solutions Private Limited, Chennai-34 rep. by its Chairman Mr.Sridharan Sivan ...Petitioner Vs 1.The Income Tax Officer-II, Corporate Ward 6(3), Aayakar Bhawan, Room No.706, 7th Floor, Wanaparathy Block, No.121, M.G.Road, Nungambakkam, Chennai-34. 2.The Additional Commissioner of Income Tax, Corporate Range-6, Nungambakkam, Chennai-34. 3.The Commissioner of Income Tax (Appeals)-15, Room No.23, 2nd Floor, Aayakar Bhavan, Main Building, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai-34. 4.The Branch Manager, Axis Bank, No.79, G.N.Chetty Road, T.Nagar, Chennai-17. 5.The Branch Manager, HDFC Bank, New No.46/B13, South Boag Road, T.Nagar, Chennai-17. 6.The Branch Manager, HDFC Bank, No.10, 3rd Cross Street, RA Puram, Chennai-28. ...Respondents 2 PETITION under Article 226 of Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for records in Pan AAGCP7986H/ITO CW6 (3)/2017-18 dated 04.9.2017 for assessment year 2014-15 on file of first respondent, quash same and direct first respondent not to collect outstanding tax demand pending disposal of appeal before third respondent. For Petitioner : Mr.M.P.Senthil Kumar For Respondents 1 to 3 : Mr.A.P.Arinivas, SPC ORDER Mr.A.P.Srinivas, learned Senior Panel Counsel accepts notice for respondents 1 to 3. Heard both. In view of order this Court proposes to pass, notice to respondents 4 to 6 is dispensed with and writ petition itself is taken up for final disposal. 2. petitioner is before this Court challenging order passed by first respondent - petitioner's Assessing officer on petition filed by petitioner for stay of demand of arrears of income tax for assessment year 2014-15. 3. assessment for said year was completed by order dated 26.12.2016 under Section 143(3) of Income Tax Act, 1961 and petitioner was assessed to tax for total income of Rs.3,71,05,196/-. Against order of assessment, petitioner filed appeal before third respondent - Commissioner of Income Tax (Appeals)-15 by appeal http://www.judis.nic.in 3 petition dated 25.1.2017. Apart from other things in appeal petition, first ground raised by petitioner is by contending that Additional Commissioner of Income Tax - second respondent herein has not given due opportunity to petitioner to be heard before passing directions under Section 144A of said Act, which is prejudicial to interests of petitioner. 4. learned counsel for petitioner has drawn attention of this Court to paragraph 3.3 of assessment order dated 26.12.2016 wherein it has been stated that reference under Section 144A of said Act was solicited to Additional Commissioner of Income Tax, Corporate Range-6, Chennai seeking directions/guidelines on issue of share premium received by company and that Additional Commissioner issued directions vide letter dated 23.12.2016 forming basis of assessment dated 26.12.2016, which is subject matter of appeal before Commissioner of Income Tax (Appeals). 5. It is further submitted by learned counsel for petitioner that opportunity ought to have been granted to petitioner before direction was issued under Section 144A of said Act. Since Assessing Officer issued notice of demand under Section 156 of said Act, petitioner filed application for stay before Assessing Officer. 6. copy of stay petition along with written submissions were placed in typed set of papers, from which, it is seen that petitioner made http://www.judis.nic.in 4 elaborate submissions on factual and legal issues and also enclosed certain decisions, which they seek to rely upon. first respondent, by impugned order, stated that petitioner did not make 20% payment as per circular No.1914 dated 31.7.2017 to consider their case for grant of stay of balance demand and that they have not submitted any valid reason for not being able to pay 20% of arrears and financials of petitioner do not highlight any financial difficulty. 7. With regard to case laws relied upon by petitioner, first respondent stated that those are all decisions rendered by Courts in writ cases and that this Court has not decided any substantial question of law. 8. said observation with regard to effect of decisions of High Court as well as Hon'ble Supreme Court is incorrect. first respondent ought to have seen what was ratio decidendi in judgment and first respondent is not justified in brushing aside judgment stating that there were in writ proceedings. observations made go contrary to settled law of precedents and as to how judgment should be made applicable to facts and circumstances of particular case. Be that as it may, it is to be seen as to whether petitioner can be granted any indulgence at this juncture. 9. learned counsel for petitioner submits that appeal filed before third respondent has been taken up for hearing and that first hearing has been completed on 06.9.2017. It is his further submission that http://www.judis.nic.in 5 third respondent opined that remand report is required to be called for in proceedings more particularly in light of fact that petitioner raised contention that they did not have any opportunity before order was passed under Section 144A of said Act, which is prejudicial to interests of petitioner. 10. Though first respondent has referred to circular of Central Board of Direct Taxes, in my opinion, while granting order of interim stay, Court or Appropriate Authority is entitled to take note of factual and legal submissions made and examine as to whether prima facie case has been made out by appellant/assessee for grant of interim order. I find in impugned proceedings that first respondent has not gone into aspect as to whether petitioner has made out prima facie case for grant of interim order and this being primordial requirement, failure to consider said aspect would render impugned order liable for interference. 11. Considering contentions raised by petitioner before Commissioner of Income Tax (Appeals) and taking note of fact that hearing of appeal has already commenced, there will be order of interim stay of all further proceedings pursuant to impugned order dated 04.9.2017 subject to condition that petitioner pays 15% of income tax demanded i.e 15% of Rs.1,58,18,050/-. It is stated that pursuant to attachment of petitioner's bank account, certain sums have http://www.judis.nic.in 6 already been realized by Department. If that be so, then, whatever amount that has already been realized shall be given credit to while arriving at balance payable by petitioner for complying with above conditional order. petitioner is directed to effect payment of amount within period of 90 days from date of receipt of copy of this order. If petitioner fails to pay said amount within time stipulated, it is open to first respondent to proceed further in accordance with law. As it has already been stated that Commissioner of Income Tax (Appeals) has commenced hearing of appeal petition, appeal petition shall be finally disposed of as expeditiously as possible by following appropriate legal procedure. 12. writ petition is disposed of with above directions. No costs. Consequently, above WMPs are closed. 11.9.2017 Internet : Yes To 1.The Income Tax Officer-II, Corporate Ward 6(3), Aayakar Bhawan, Room No.706, 7th Floor, Wanaparathy Block, No.121, M.G.Road, Chennai-34. 2.The Additional Commissioner of Income Tax, Corporate Range-6, Nungambakkam, Chennai-34. 3.The Commissioner of Income Tax (Appeals)-15, Room No.23, 2nd Floor, Aayakar Bhavan, Main Building, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai-34. 4.The Branch Manager, Axis Bank, No.79, G.N.Chetty Road, T.Nagar, Chennai-17. http://www.judis.nic.in 7 T.S.SIVAGNANAM,J RS 5.The Branch Manager, HDFC Bank, New No.46/B13, South Boag Road, T.Nagar, Chennai-17. 6.The Branch Manager, HDFC Bank, No.10, 3rd Cross Street, RA Puram, Chennai-28. WP.No.24309 of 2017 & WMP.Nos.25720 & 25721 of 2017 11.9.2017 http://www.judis.nic.in 8 W.P.No.24309 of 2017 & W.M.P.Nos.25720 & 25721 of 2017 T.S.SIVAGNANAM, J. Today this matter has been lister under caption 'for being mentioned'. 2.It is pointed out by learned counsel for petitioner that this Court while passing order directed petitioner to pay 10% of Income-tax demanded i.e., 10% of Rs.1,58,18,050/-. However, in order there is typographical error in para No.11 and it has been printed as 15%. 3.Learned counsel appearing for revenue does not dispute above submission. 4.Accordingly, in paragraph No.11 of order, wherever it is stated as 15%, it shall be mentioned as 10%. Registry is directed to issue amended certified copy. 14.09.2017 abr Note : Issue order copy on 18.09.2017 http://www.judis.nic.in 9 T.S.SIVAGNANAM, J. abr W.P.No.24309 of 2017 14.09.2017 S-10 Health Care Solutions Private Limited v. ITO-II,Corporate Ward-6(3),/The ACIT,Corporate Range-6/The Commissioner of Income-tax (Appeals)-15/The Branch Manger,Axis Bank/ Branch Manager, HDFC Bank/The Branch Manager, HDFC Bank