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26-03-2019, Milestone Real Estate, Section 281B, 226(3), HIGH COURT OF BOMBAY

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4 months 2 weeks ago #8913 by amit
Section - 281B, 226(3), 220(6), 245, 10(23FB)
Order Date - 26-03-2019
Favouring - Revenue
Court - HIGH COURT OF BOMBAY
Appellant - Milestone Real Estate Fund
Respondent - ACIT
Justice - AKIL KURESHI & M.S.SANKLECHA, JJ.
Citation - 319Taxpundit431
Appeal No. - WRIT PETITION NO.540 OF 2019
Asstt. Year - 2015-16

Order

PER : M.S. Sanklecha,J

RULE. By consent, rule made returnable forthwith. Counsel for the Respondent waive service. Petition taken up for final disposal.

2 This Petition under Article 226 of the Constitution of India, relates proceedings under the Income Tax Act, 1961 (the Act) for Assessment Year 2015­16. The Petitioner seeks the following reliefs:­

(a) the order dated 18th December, 2018 passed by the Assessing Officer of provisional attachment under Section 281B of the Act, be set aside;

(b) notices dated 19th December, 2018 issued to the Assessing Officer under Section 226(3) of the Act, attaching Petitioner's bank accounts, be set aside;

(c) the orders dated 29th January, 2019 passed by Respondent No.1­ Assessing Officer and 14th February, 2019 passed by Respondent No.2 ­ Pr. Commissioner of Income Tax [Pr. CIT] rejecting the Petitioner s applications for complete stay on recoveries under Section 220(6) of the Act of outstanding demand, arising out of assessment order dated 20th December, 2018, relating to Assessment Year 2015­16, pending disposal of its appeal by the Commissioner of Income Tax (Appeals) [CIT(A)], be set aside;

(d) notice of demand dated 15th February, 2019 passed by the Assessing Officer, adjusting refund of Rs.21.41 Crores, payable for the Assessment Year 2013­14 against outstanding demand of Rs.52.78 Crores payable for the Assessment Year 2015­16 under Section 245 of the Act be, set aside; and (e) as a consequence of the above, the Assessing Officer be directed:­

(i) to deposit forthwith the amount of Rs.14.62 Crores adjusted for Assessment Year 2015­16 after withdrawing in aggregate an amount of Rs.29.25 Crores from the Petitioner's bank account;

(ii) to hand over the refund of Rs.21.41 Crores relating to Assessment Year 2013­14; and

(iii) to restrain the Respondents from adopting any proceedings for recovery of any outstanding demand for the Assessment Year 2015­16 till the disposal of its pending appeal by the CIT(A) and for a period of eight weeks thereafter.

3 The facts leading to this Petition are as under:­

(a) The Petitioner is a trust established under the Indian Trusts Act, 1882. The Petitioner has been granted a certificate of registration by the Securities and Exchange Board of India (SEBI) as Venture Capital Fund. This makes the Petitioner eligible for exemption under Section 10 (23FB) of the Act while computing its taxable income;

(b) For the subject Assessment Year 2015­16, the Petitioner filed its return of income on 30th November, 2015. In its return, it declared a total income of Rs.10.85 Crores after claiming exemption under Section 10 (23FB)) of the Act and also exemption of dividend income earned from mutual funds under Section 10(35) of the Act. This return of income was accepted under Section 143(1) of the Act;

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