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13-11-2018, Cholamandalam MS General, Section 260A, HIGH COURT OF MADRAS

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4 months 2 days ago #7718 by amit
Section - 260A
Order Date - 13-11-2018
Favouring - Assessee
Court - HIGH COURT OF MADRAS
Appellant - Cholamandalam MS General Insurance Company Ltd.
Respondent - ITO
Justice - T.S.SIVAGNANAM & N.SATHISH KUMAR
Citation - 1118Taxpundit136
Appeal No. - Writ Petition Nos.22376 to 22379 of 2018
Asstt. Year -

Order

PER : T.S.SIVAGNANAM,J

We have heard the learned counsel appearing for all the parties.

2. In these writ petitions, the petitioners are three in number, namely Cholamandalam MS General Insurance Company Limited, Royal Sundaram General Insurance Company Limited and United India Insurance Company Limited. Four of the writ petitions filed by both the Cholamandalam MS General Insurance Company Limited and the Royal Sundaram General Insurance Company Limited were numbered as W.P.Nos.22376 to 22379 of 2018. Prior to the said petitions being numbered, Registry raised an objection with regard to maintainability on the ground that as against the impugned orders passed by the Income Tax appellate Tribunal (for brevity, the Tribunal), an appeal lies to this Court under Section 260A of the Income Tax Act, 1961 (for short, the Act) and the appeal has to be decided on a substantial question of law to be framed by the Division Bench.

3. It is represented by the learned Senior Counsel appearing for the Cholamandalam MS General Insurance Company Limited and the Royal Sundaram General Insurance Company Limited that the said writ petitions were directed to be numbered on 28.8.2018 subject to maintainability and by order dated 30.8.2018, an order of interim stay has been granted for a period of four weeks.

4. It is seen that subsequently, by order dated 17.9.2018, the interim order has been extended till 10.10.2018. Again 10.10.2018, the Division Bench of this Court extended the interim order till 31.10.2018. Further, again on 31.10.2018, the matters were adjourned by two weeks and the interim order has been extended for a further period of two weeks At this stage, the said writ petitions are listed before us. Along with the said writ petitions, the other writ petitions filed by the other two insurance companies are listed under the caption 'for maintainability'

5. The Revenue objects to the maintainability of the writ petitions on the ground that an appeal lies to the Division Bench of this Court under Section 260A of the Act and that no writ is maintainable.

6. The reply by the learned Senior Counsel appearing for both the Cholamandalam MS General Insurance Company Limited and the Royal Sundaram General Insurance Company Limited is that the Tribunal transgressed its jurisdiction and had given certain findings, which have virtually made the IRDA (General Insurance – Reinsurance) Regulations, 2000 as nugatory. Furthermore, before rendering such a finding, the Tribunal ought to have heard the Government of India, the Insurance Regulatory and Development Authority of India, the Central Board of Direct Taxes and the General Insurance Council, which are proper and necessary parties to be heard in the matters. According to the learned Senior Counsel, the petitioners are justified in their action in approaching this Court by filing the said writ petitions and had impleaded them as respondents 3 to 6.

7. In our considered view, the issue regarding maintainability of the writ petitions has become academic, as the Cholamandalam MS General Insurance Company Limited has already filed tax case appeals against the orders passed by the Tribunal and those appeals are in the process of being numbered.

8. So far as the other insurance companies are concerned, it is stated that they are in the process of filing appeals. They would further state that the period of limitation is 120 days and that the period is yet to be over.

9. It is settled legal principle that before the expiry of appeal time, if recovery proceedings are initiated, it would virtually render the appeal as infructuous. Therefore, considering the fact that the said writ petitions were directed to be numbered subject to maintainability and that there has been an interim order in force since 30.8.2018, we are of the considered view that

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