wp-1405-2019 IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1405 OF 2019 Grasim Industries Ltd., .. Petitioner. v/s. Dy. Commissioner of Income Tax Central Circle-1(4) & Others .. Respondents. Mr. J. D. Mistri, Sr. Advocate with Mr. Madhur Agarwal i/b. Mr. A. K. Jasani, for Petitioner. Mr. Anil Singh, Addl. Solicitor General with Mr. N. C. Mohanty, for Respondents. CORAM: M.S.SANKLECHA & NITIN JAMDAR, JJ. DATE : 1st OCTOBER, 2019. P.C:- On 14th August, 2019, we passed following order:- On 22 March 2019, this Court passed following order: 1. Petitioner has challenged action of Assessing Officer in raising tax demand of sum of Rs.5,872.13 Crores (rounded of) and further directing Petitioner to pay up such amount forthwith, without allowing Petitioner any time for either challenging it before appropriate authority or in any other manner allowing Petitioner to pursue its remedies. Learned Counsel for Petitioner submitted that order passed by Assessing Officer which gives rise to tax demand, is wholly unsustainable in law. In any case, Assessing Officer could not have insisted on Petitioner depositing entire tax amount even without allowing Petitioner to approach Appellate Authority. 2. Learned Counsel Mr. Mohanty prays for time to file reply. Such time is granted. S.R.JOSHI 1 of 5 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 10/10/2019 17:25:38 ::: wp-1405-2019 3. facts of case are peculiar. huge tax demand is sought to be enforced forthwith without permitting time for filing Appeal or alternative appropriate proceedings. question of prima-facie case of Petitioner would also be relevant. Under circumstances, while granting time to Respondents for filing reply, there shall be stay against recovery of tax. 4. Stand over to 12/04/2019. 2. Petitioner has invoked extra ordinary jurisdiction of this Court challenging impugned order dated 14 March 2019 passed by Respondent No.1 under section 115Q read with 115O of Income Tax Act, 1961 (Act). Petitioner has averred that there is no efficacious alternate remedy of statutory appeal available under Act. This as impugned order dated 14 March 2019 as well as notice of demand under section 156 of Act have specifically stated that there would only be Revision under section 264 of Act available to Petitioner. 3. Today, learned Additional Solicitor General invites our attention to affidavit-in-reply dated 11 April 2019 wherein it is stated that appellate remedy under section 246A of Act to Commissioner (Appeals) from impugned order dated 14 March 2019 would be available to Petitioner. learned Additional Solicitor General reiterated position and states that efficacious alternate remedy against impugned order under section 246A of Act would be available before Commissioner of Income Tax (Appeals). 4. However, looking to peculiar facts of case, it is only for Commissioner of Income Tax (Appeals) to decide his jurisdiction in accordance with law. Therefore it would be appropriate that petitioner files appeal to Commissioner of Income Tax (Appeals) within period of three weeks from today. On petitioners filing appeal, Commissioner of Income Tax (Appeals) shall, within further period of three weeks from date of filing, decide issue of maintainability of appeal before him in context of section 246A of Act. In case Commissioner of Income Tax (Appeals) holds that appeal from S.R.JOSHI 2 of 5 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 10/10/2019 17:25:38 ::: wp-1405-2019 impugned order dated 14 March 2019 passed under section 115O of Act is available and appeal as filed is maintainable, then this petition will be withdrawn by Petitioner. This as effective alternate remedy is available. However, it is made clear that withdrawal of this petition would not, in any manner, fetter Petitioner from challenging any other orders passed by Authorities under Act in these proceedings. This, as such orders would give rise to separate cause of action for petitioner to challenge, if otherwise entitled to do so. 5. Petition be placed under caption of direction on 1 October 2019. 6. Ad-interim stay granted earlier to continue till next date. 2 Today, when Petition was called out, we are informed by parties state that Commissioner of Income Tax (Appeals) [CIT(A)] has by order dated 19th September, 2019 held that appeal against order dated 14th March, 2019 passed by Assessing Officer under Section 115(Q) read with Section 115O of Income Tax Act, 1961 (the Act), would be maintainable before him. 3 Therefore, Mr. Mistri, learned Sr. Counsel, for Petitioner on instructions, seeks to withdraw this Petition and prosecute appeal filed before CIT(A). However, in view of huge demand involved in this appeal aggregating to demand of Rs.5,800/- Crores, in context of authorities seeking to recover same immediately, he seeks following directions:- (a) Revenue should not adopt any coercive proceedings till disposal of appeal by CIT(A); and (b) CIT(A) be directed to dispose of Petitioner s appeal from order dated 14th March, 2019 within specified time. S.R.JOSHI 3 of 5 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 10/10/2019 17:25:38 ::: wp-1405-2019 4 In support of first submission namely grant stay on recovery till final disposal of appeal by CIT(A), Mr. Mistri, placed reliance upon decision of Delhi High Court in matter of Genpact India (P) Ltd., v/s. DCIT 108 taxmann. Com 340 wherein in similar circumstances, stay was granted. However, we find in that case, Revenue had itself stated that demand would not be enforced till Appeal of Petitioner therein is disposed of by CIT(A). learned Addl. Solicitor General, on instructions, states that he is not in position to make such statement on behalf of Revenue. Thus, above decision of Delhi High Court is of no assistance to Petitioner. 5 We note that once it is held that appeal under Act is maintainable from impugned order dated 14 th March, 2010 passed by Assessing Officer, then all incidence of appeal would equally apply in case of Petitioner. It is also not disputed that once Petitioner has filed appeal before CIT(A), it is open to Petitioner to make appropriate application before Authorities under Section 220 (6) of Act, for stay of demand till final disposal of appeal before CIT(A). It would, therefore, be open to Petitioner to take such measures as are available under Act to obtain appropriate order, seeking stay of recovery of demand confirmed by order dated 14th March, 2019. Looking at huge demand and attitude of Revenue in curtailing normal period of 30 days available to party to make payment, it would be appropriate that till disposal of Petitioner s application under Section 220(6) of Act and if order on such application is adverse to Petitioner, then for period of two weeks thereafter, no coercive proceedings will be adopted by Revenue. S.R.JOSHI 4 of 5 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 10/10/2019 17:25:38 ::: wp-1405-2019 This, of course, subject to Petitioner filing necessary application within period of two weeks from today. 6 In above view, we are not inclined to grant direction (a) as sought by Petitioner. 7 So far as second submission is concerned, learned Addl. Solicitor General states that CIT(A) would endeavor to dispose of appeal as expeditiously as possible and preferably within period of six months from today. In view of above statement, direction (b) as sought, does not survive. 8 Petition disposed of as withdrawn. (NITIN JAMDAR,J.) (M.S.SANKLECHA,J.) S.R.JOSHI 5 of 5 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 10/10/2019 17:25:38 ::: Grasim Industries Ltd. v. Dy. Commissioner of Income-tax Central Circle-1(4) & Other