Hotel Leela Venture vs. Ag. ITO (Kerala High Court)

DATE: (Date of pronouncement)
DATE: December 25, 2010 (Date of publication)

Click here to download the judgement (hotel_leela_venture_recovery.pdf)

No coercive recovery if first appeal ready for hearing

The assessee filed appeals before the Commissioner (Appeals) against the assessment orders for AYs 2004-05 to 2008-09. Though the appeals were ripe for hearing and the appellate authority had already posted the appeals for hearing on different dates, the AO without considering the pendency of the appeals issued demand notices and took steps for attachment of the assessee’s bank account. The assessee filed a Writ Petition to challenge the recovery action which was opposed by the department on the ground that the assessee had repeatedly sought adjournment of the hearing of the appeals. HELD allowing the Petition:

(i) The appellate authority is directed to dispose of the appeals at the earliest possible, after affording an opportunity of hearing to the assessee, at any rate within a period of one month from the date of receipt of a copy of the Court’s judgment;

(ii) Till such time orders are passed by the appellate authority, recovery steps shall be kept in abeyance;

(iii) If there is any non-cooperation from the part of the assessee, the appellate authority is at liberty to finalize the appeals without providing any further opportunity of hearing.

Note: In Mahindra & Mahindra vs. UOI 59 ELT 505 (Bom) it was held that it was “highly improper” to recover the demand before expiry of the statutory period of appeal & during the pendency of a stay application. {See also Anab-E-Shahi vs. ADC 98 STC 386 (AP) & RPG Enterprises 251 ITR 20 (AT)(Mum)}. See Sultan Leather vs. ACIT 191 ITR 179 (All) (No recovery during pendency of rectification application). See also strictures passed in Paramount Health Services vs. ACIT 37 DTR 377 (Bom) against department’s mindless recovery action & Chankayagiri & The Art Of Tax Recovery

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