Cwjc/12003/2010 Of Hotel Raj Palace v. Commissioner Of Income Tax, Bhagalpur

IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.12003 of 2010 ==================================================== Hotel Raj Palace, a partnership firm having its place of business at Chowk Bazar, P.O.- Munger, P.S. Kotwali, Munger in the town and District of Munger through one of its partners, Sri Baljeet Singh, S/O Sri Bijay Singh, aged about 30 years, residing at Purab Sarai, P.O.- Munger, P.S.- Kotwali Munger in the town and District of Munger. ….….Petitioner Versus 1. Commissioner of Income tax, Bhagalpur 2. Deputy Commissioner of Income tax, Circle-2, Begusarai 3. Assistant Commissioner of Income tax, Circle 2, Begusarai 4. Commissioner of Income Tax (Appeals)-1, Patna 5. The Branch Manager, Punjab National Bank, Munger Bari Bazar Branch, Munger 6. Sri Rameshwar Singh S/O Late Dilip Singh Hotel Raj Darbar, C/O Hotel Raj Palace, Munger Raj Palace, Munger 7. Union of India through the Secretary, Department of Revenue, Ministry of Finance, Government of India, Central Secretariat, North Block, New Delhi- 110 001. Finance, Government of India, Central Secretariat, North Block, New Delhi- 110 001. ….….Respondents ==================================================== Appearance : For the Petitioner: Mr. Vikash Jain, Senior Advocate with Mr. Rakesh Kumar Singh, Advocate For the Respondent: Mr. Harshwardhan Prasad, S.S.C. with Mr. Rishi Raj Sinha, J.S.C. ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE)3. 29.9.2010. This petition under Article 226 of the This petition under Article 226 of the Constitution has been filed by an assessee. The subject matter of this writ is the assessment proceeding under Section 148 of the Income tax Act, 1961 (hereinafter referred to as ‘the Act’) for the Assessment Years 2001-02, 2002-03, 2003-04 and 2004-05 and the coercive recovery made under the Demand Notice dated 22[nd] June 2010. It is the grievance of the petitioner-assessee that neither the assessee had been noticed under Section 148 of the Act nor his appeal and the application for stay pending the appeal against the assessment has been heard and decided. Nevertheless, the respondent department has taken recourse to coercive recovery. It appears that pending this petition the assessment officer has rejected the stay application on 10[th] August 2010. Once again, it is the grievance of the petitioner that the order dated 10[th] August 2010 is made by the Assistant Commissioner of Income tax without affording opportunity of hearing to the petitioner. In support of his submission, Mr. Jain has relied upon the judgment of the Delhi High Court in the matter of Taneja Developers and Infrastructure V. Asstt. CIT (Delhi) [2010] 324 ITR 247 (Delhi), particularly, paragraph 43 thereof. With the consent of the learned Advocates the order dated 10[th] August 2010 made by the Assistant Commissioner of Income tax is set aside. The Assistant Commissioner of Income tax will reconsider and decide the stay application afresh after affording opportunity of hearing to the writ petitioner-assessee. The said exercise shall be completed by 30[th] October 2010. In the event, the stay application is not heard and decided afresh by 30[th] October 2010, the impugned order of attachment dated 13[th] July 2010 shall stand vacated automatically without further order. This order is made on condition that the petitioner-assessee will cooperate in hearing and disposal of the stay application. The assessee may approach the appellate authority for early hearing of the appeal. Subject to above order, the writ petition stands disposed of. Let copy of this order be given to the learned Advocates appearing for the parties. (R.M. Doshit, CJ) Pawan/- (Jyoti Saran, J)