|CORAM:||B. R. R. Kumar (AM), Sanjay Garg (JM)|
|CATCH WORDS:||coercive recovery, Recovery of tax, strictures|
|DATE:||May 9, 2018 (Date of pronouncement)|
|DATE:||June 6, 2018 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|It is painful to note that the Dept officials in order to achieve targets at the close of the FY not only are tempted to ignore the principles of law and natural justice but cross their limits, in complete violation of the orders issued by judicial authorities. They are pressurised by higher officials to do so and they have to choose the lesser risky option of the two i.e. either to face the departmental action for not achieving targets or to face contempt proceedings. They choose the later option because perhaps they think that courts will not opt for strict view in case the amount coercively recovered is refunded after passing of the cut off date i.e. 31st March, and an apology tendered to the Court|
4. Though severe structures have been passed by the Tr ibunal in i ts order dated 20.12.2017 against the of f icials of the department for i llegal and coercive recovery made by them f rom the assessee and fur ther despite directions of the Tribunal staying fur ther recovery f rom the assessee and also to refund Rs. 50 lacs, i llegal ly recovered f rom the debtor of the assessee as directed in the order dated 20.12.2017 reproduced above, the Depar tmental of f icials did not bother to give any heed to the directions passed by the Tribunal and again in complete violation of the orders of the Tribunal recovered / adjusted the amount of Rs. 16,50,62,238 vide letter of the Assessing of f icer dated 13.3.2018.
Even the Assessing of f icer ignored the submissions made by the assessee vide let ter f iled on 28.2.2018 which was not only delivered to the of f ice of the Assessing of f icer manually but also through e.mai l dated 9.3.2018 and further reminder dated 12.3.2018 objecting against the adjustment of refund for assessment year 2008-09 against the demand for the assessment year under consideration i .e. 2009-10 and also apprising the Assessing of f icer about the Stay order of the Tribunal against the recovery of the demand. The Tribunal af ter considering the submissions of both the par ties, passed the fol lowing order dated 23.3.2018:-
M.A.No. 70/Chd/2018 –Greater Mohall Area Development Authority, Mohal i Vs. DCIT Present for the assessee: Sh. Sudhir Sehgal , Advocate Present for the Department: Smt. Chanderkanta, Addl. CIT
Heard the Misc. Pet it ion. The assessee-appl icant has pleaded that this Tribunal vide order dated 20.12.2017 had stayed recovery of the balance amount sought to be recovered by the Department from the assessee for assessment year 2009-10. The Ld. Counsel has submi tted that despite the order dated 20.12.2017, The Department has not compl ied with the instructions and has recovered the outstanding demand by way of adjustment against the demand for assessment year 2008-09. He, in this respect has relied on the paper book pages 37 & 38 which is a copy of letter addressed by the concerned Assessing off icer to the assessee wherein it has been mentioned that the outstanding tax demand for the assessment year 2009- 10 has been adjusted against the refund due for assessment year 2008-09. The Ld. Counsel, therefore, has pleaded that the concerned Assessing of ficer be directed not to adjust the refund for assessment year 2008-09 against the demand for assessment year 2009-10. I t has been further pointed out in the appl ication that even the other directions given by the Tribunal directing the Assessing of ficer to refund Rs. 50 lacs recovered from the debtor has also not been compl ied wi th. The Ld. counsel , therefore, has submit ted that the appropriate action be taken / direct ions be issued in this respect to the concerned authorit ies.
2. On the other hand, Ld. DR has moved an adjournment let ter wherein i t has been stated that heavy quantum is involved in the case and that the case is very sensitive to the Department and that grave issues have been raised in the peti tion against the conduct of the Assessing officer. That the comments of the Assessing off icer have been sought in this respect . She, therefore, has requested that 15 days t ime may be granted to the Department to fi le written submissions. I t has been further argued by her that the notice cannot taken of the let ter dated 13.3.2018 written by Dr. Ranj it Kaur, DCIT Circle 6(1) Mohal i, who is the Assessing officer of the assessee, wherein it has been mentioned that the refund for assessment year 2008- 09 had been adjusted against the demand for 2009-10.
That the assessee must produce the copy of the challan or other relevant evidences showing that the Assessing off icer has adjusted the refund. That the action cannot be taken on the mere averments of the assessee without any support ing evidence. She has further submitted that even before taking any action, the Assessing of ficer be given an opportuni ty to reply to the averments made in applicat ion.
Another argument has been addressed that this Misc. Applicationis not maintainable as i t does notspeak of any mistake apparent on record of the order. That there was an order of the Hon’ble High Court dated 5.12.2017, whereas, this Tribunal subsequently has passed the order dated 20.12.2017. That in view of this, the order of the Tribunal is not enforceable. Further, that the present Misc. Application is not maintainable at this stage.
3. We have considered the rival contentions. It is not iced from the record that this Tribunal vide order dated 20.12.2017 has not iced that the Department has already recovered 31% of the total demand for assessment year 2009-10, and taking into consideration the facts and circumstances of the case especially the development act ivity carried on by the assessee, the further recovery of the demand has been stayed for a period of 6 months or til l the disposal of the appeal by the Tribunal, whichever is earlier. The Tribunal has also re-aff irmed i ts directions given on 29.11.2017, direct ing the Department to refund the amount of Rs. 50 lakhs collected by the Department from the debtor of the assessee. Now in this pet it ion, the appl icant has stated that the Department has not compl ied wi th the direct ions of the Tribunal for refund of the amount to the debtor also and further that in complete violation of the order of the Tribunal, the Assessing officer has recovered the remaining amount from the assessee. The assessee, thus, has moved the present applicat ion.
4. So far as the arguments of the Ld. DR that this application is not maintainable, we are not in agreement with the above content ion. If this Tribunal has jurisdiction to pass an order, directing for Stay of recovery of the demand, this Tribunal also has got the inherent power for entertaining and adjudicat ing application for noncompl iance of the order / direct ions issued by it. Further, if any contempt of court proceedings have to be taken / recommended against any party to the li tigat ion / off icial for violation of the order of the Tribunal that have also to be considered and decided after hearing such application moved by ei ther party. In view of this, we hold that application of the assessee is maintainable.
5. So far as the argument that the order of the Tribunal has no force of law, the said argument , in our view, is not tenable, rather the argument taken in this respect show the unwil lingness, disrespect ful and objectionable att itude of the Department for the orders of the Tribunal . If the Department was aggrieved by the order / any directions given by the Tribunal in the order dated 20.12.2017, the proper course was to approach the higher judicial forum / Hon’ble High Court, but to say that the order cannot be enforced is an act which does not behove to the officials of the Department. So far as the submission that before passing any adverse order, opportuni ty of hearing should be granted to the Assessing off icer, we are in agreement with the above submissions of the Ld. DR. Let the concerned Assessing off icer be summoned and she be heard as to why the ‘Contempt of Court’ proceedings be not init iated / recommended against her for violat ing / disrespect ing the orders of the Tribunal and further why the appropriate costs be not imposed and reasonable damages be not awarded to the assessee in this respect and as to why the same be not recovered from the salary of the concerned responsible off icer / of ficers.
6. Let the concerned Assessing of ficer as wel l as the other concerned officers who have either part of the execution of recovery or have approved the recovery / adjustment of refund despi te the order of the Tribunal dated 20.12.2017 come and explain their posi tion on 6.4.2018. Copy of the order be supplied to the Ld. DR so that the same may be conveyed further to the concerned off icer/s.”
5. Pursuant to the above order , the Assessing of f icer namely Dr. Ranji t Kaur, DCIT and the Addi tional CIT namely Shri Kultej Singh Bains, who approved the aforesaid proposal for adjustment of refund appeared in person on 6.4.2018 and tendered apology letter. However , when this Tribunal enquired as to whether the amount i llegally recovered in violation of the said order dated 20.12.2017 has been refunded to the assessee, they answered in negative, and thereaf ter the case was adjourned to 10.4.2018 for submit ting report by the concerned of f icials regarding refund of the amount il legal ly recovered and also explanat ion of the concerned of f icial regarding their illegal acts of recovery. Thereaf ter on 10.4.2018, the concerned of f icials namely Dr . Ranjit Kaur, JCIT and Shri Kul tej Singh Bains, Addl. CIT appeared and submitted a letter dated 10.4.2018 stating therein that in compliance of the directions of the Tr ibunal, the department has issued refund of the amount adjusted against the outstanding demand for assessment year 2009-10 i.e. as amount of Rs. 1633955420/- vide refund order / cheque No. 257211 dated 9.4.2018. It has also been stated that the concerned of f icials tender an uncondit ional apology for their act and further undertake to comply wi th the any further orders / directions given by the Bench. I t has been further requested that the further proceedings against the concerned of f icials be dropped.
The counsel for the assessee – appl icant has also admi t ted that the amount il legal ly recovered f rom the assessee has been refunded.
6. Before proceeding further , we deem it f it to mention here that despi te severe structures and directions of the Tr ibunal against the departmental of f icials passed vide order dated 20.12.2017, which was not only very much in the knowledge of not only of the concerned of f icials who had done the coercive act of recovery f rom the assessee but also to the senior of f icials of the Depar tment. The concerned Principal Commissioner of Income Tax herself had come present to argue the mat ter in the Stay Appl icat ion on 29.11.2017 alongwith depar tmental representat ives and the concerned Assessing of f icer leading to order dated 20.12.2107. Under the circumstances, it cannot be said that the il legal recovery, even despite strict directions of the Tr ibunal, has been made by the Assessing of f icer wi thout the knowledge of the higher of f icials. I t is painful to note here that the Depar tmental of f icials in order to achieve their targets at the close of the f inancial year i.e. by 31s t March of the year, not only are tempted to ignore the pr inciples of law and natural justice but cross their jur isdictional / authori tative l imits, in complete violation of the directions / orders issued by their higher judicial authori ty. The concerned of f icials i .e the Assessing of f icer or the Addl . CIT, in our view, are not so ignorant or innocent to understand the l ikely consequences which they may have to face in proceeding il legal ly to make coercive recovery in violation of the orders of this Tribunal or higher cour ts but they, in our view, are so much pressur ised by the higher of f icials to do so and they have to choose the lesser risky opt ion out of the two i.e. either to face the departmental action / dire of their senior of f icers for not achieving the targets or to face the contempt proceedings, if any, l ikely to be init iated by the Cour ts of law for violation of their orders, and interestingly, they convenient ly choose the later option because perhaps they think that courts / higher judicial authori ties wil l not opt for strict view in case the amount coercively recovered is refunded af ter passing of the cutof f date i.e. 31s t March, and an apology tendered to the Court / higher judicial author i ty. They also know that that even such a situat ion of refund or apology could occur only in case the concerned assessee would choose to contest such il legal recovery. Our above view is not only based on the facts of this case, but we have come across with these type of facts and circumstances in other cases also. This type of practice adopted by the Department, in our view, may lead to severe consequences af fecting the administrat ion of just ice. It is right t ime for the Depar tment / CBDT to take necessary steps in this respect.
7. Now coming to the facts on mer its, as observed above, since the amount recovered i llegally during the stay appl ication has been refunded by the Department to the assessee and the assessee at this stage is no more aggrieved; fur ther the concerned of f icials have also tendered uncondi tional apology and also in view of our observations made above that these lower rank depar tmental of f icers have to succumb to the pressure of their higher ups for the sake of their service / career, we accept the uncondi tional apology tendered by the Assessing of f icer and Addl. CIT.