VittSphere ONE Calculators Blog CA Prabhakar Kumar · FCA · ICAI 560762
Case lawHigh Court › Bhupendra Murji Shah v DCIT
High CourtHelps taxpayerValidity unconfirmeds.220(6)s.226(3)s.246s.246As.156

Bhupendra Murji Shah v DCIT

My appeal is filed and part-heard, but the Assessing Officer says pay 20% or recovery continues, and my bank account is attached. What can the High Court do?

My appeal is filed and part-heard, but the Assessing Officer says pay 20% or recovery continues, and my bank account is attached. What can the High Court do?

The Bombay High Court directed that during the pendency of the appeals the assessee not be called upon to pay any sum, much less 20%, and that any attachment on his bank account be raised forthwith. The reasoning is that a statutory right of appeal must not be rendered illusory and nugatory by recovery that would make the appeal infructuous before it is heard. But read the order to the end: the Court itself said it cannot be treated as a precedent for all cases of this nature.

Decided by the High Court (S.C. Dharmadhikari J and B.P. Colabawalla J) on 2018-09-11, reported as Writ Petition Nos. 2157 and 2160 of 2018 (High Court of Judicature at Bombay); Revenue's SLP (C) Diary No. 15500/2019 dismissed by the Supreme Court on 03.07.2019 with the question of law kept open. It bears on section 220(6), section 226(3), section 246, section 246A, section 156 of the Income Tax Act 1961, in Demand, Recovery & Stay and Appeals matters.

Validity check could not be completed. The Supreme Court's record of proceedings dated 03.07.2019 in SLP (C) Diary No. 15500/2019 was read: the Revenue's petitions were dismissed, but with the reason recorded that 'The question of law is kept open'. A dismissal in those terms does not affirm the reasoning, and the High Court itself said at para 7 that the order is not a precedent for all cases of this nature. No further check of subsequent treatment was made. Treat the case as persuasive on principle and on the form of relief, not as authority that a deposit can never be required pending appeal.

Why it matters

This is the most quoted formulation of why coercive recovery pending appeal is objectionable, and it is worth carrying precisely because of its limits - both of which the profession tends to leave out. First, the Court expressly declined to deal with the CBDT circular or with the officer's recovery powers; it decided on the narrow footing that the appeal was already part-heard before the Commissioner (Appeals). Second, para 7 records that in ordinary circumstances the assessee would have been relegated to a stay application before the Commissioner (Appeals), and that this order is not a precedent. The Revenue's SLP against it was dismissed by the Supreme Court on 3 July 2019, but with the express reason that the question of law is kept open - so the point is not settled by that dismissal either. Use it for the principle and for the shape of the relief, not as a rule that no deposit can ever be required.

Binding within that High Court's jurisdiction. Persuasive elsewhere.

Not yet CA-verified. This entry was found through the sources listed under the Sources tab, and the summary reflects what those sources say. Nobody has yet read the full judgment and signed it off. Check the source before relying on it.

Work out the numbers

Interest on demand →

Read aloud by your device. Press again to stop.

Related

Other authorities on the same sections.

Used in these worked examples

Notice situations where this decision carries one of the steps.
A large demand, a fresh appeal, and the officer wants 20 per cent nowThe appeal is filed and the officer says pay 20 per cent or face recovery - what actually has to be paid?Two bank accounts frozen and a flat sale treated as voidThe recovery officer has garnished my accounts and says a sale I made in 2023 is void - what can be reversed?