J.k. Ranka),J. (Ajay Rastogi),J v. Shekhaw

In The High Court of Judicature for RajasthanJaipur Bench, JaipurO R D E RD.B. Special Appeal (Writ) No.1256/2013 Date : 21.11.2013 Hon'ble Mr. Justice Ajay RastogiHon'ble Mr.Justice J.K. Ranka Mr. Sanjay Jhanwar, for appellant. Mr. Sameer Jain, for respondent. Instant intra-court appeal has been filed against order oflearned Single Judge dt.06.11.2013 directing the appellantpetitioner to deposit 50% of the demand pursuant to orderimpugned passed by Income Tax Settlement Commission(“Commission”) dt.28.06.2013 pending adjudication of the disputeand on these terms the stay application was accordingly disposedof and the writ petition was ordered to be listed for admission. Counsel for appellant vehemently urged that the order ofthe Commission impugned before the learned Single Judge in thepending proceedings is wholly without jurisdiction and themechanism which has been adopted by the Commission in passingof order impugned in all fairness is not in conformity with themandate of law and the demand which is now being raised againstthe appellant to deposit pursuant to order impugned of theCommission is per se bad in the eye of law and further submitsthat after taking note of the submissions the learned SingleJudge didn't express a prima facie opinion on merits while passingorder on the stay application directing the appellant to deposit50% of the demand and the balance was kept in abeyance andfurther observed that if the petitioner succeeds he will beentitled for refund of the amount with interest as per the rate prescribed under the statute. Counsel submits that if the appellant petitioner is calledupon to deposit even 50% of the demand in terms of orderimpugned of the Commission which he is unable to deposit, in thisscenario pendency of writ petition remains insignificant andfurther submits that balance of convenience & irreparable losshave not been properly appreciated by the learned Single Judgewhile granting interim protection to the appellant under orderimpugned dt.06.11.2013. At the outset we may record that all the submissions madeon merits are still to be examined by the learned Single Judgewhere the proceedings are pending adjudication and as regardsinterim protection after taking note of the rival submissions madeby the parties the learned Single Judge was of the view that letthe petitioner may deposit 50% of the demand in terms of orderimpugned in the pending proceedings which may be equitablebetween the litigating parties and in our considered view as well,if equitable jurisdiction granting interim protection has beenexercised by the learned Single Judge that may not requireinterference, we may also observe that the practice which hasbeen developed in filing of special appeal against the interimorders of the Court is not in the interest of the litigating partiesand this Court deprecates such practice and also remainsreluctant in interfering unless the order impugned is per se bad inlaw which is not the case made out by the appellant petitioner inthe instant proceedings. As regards the submission made regarding assailing of theorder of the learned Single Judge on merits suffice it to say thatit will not be appropriate for this Court to express any opinion when the proceedings are pending before the learned SingleJudge and the parties are at liberty to raise their objections inthe pending proceedings and expressing any opinion by this Courtwill certainly prejudice rights of the either party in the pendingproceedings before the learned Single Judge. As regards the submission made regarding assailing of theorder of the learned Single Judge on merits suffice it to say thatit will not be appropriate for this Court to express any opinion when the proceedings are pending before the learned SingleJudge and the parties are at liberty to raise their objections inthe pending proceedings and expressing any opinion by this Courtwill certainly prejudice rights of the either party in the pendingproceedings before the learned Single Judge. As regards the submission made that balance of convenience& irreparable loss have not been properly appreciated by thelearned Single Judge, in our considered view the present orderpassed by the learned Single Judge is based on relevantconsiderations which includes prima facie case, balance ofconvenience & irreparable loss as well between the parties andtaking equity into consideration the order came to be passedimpugned herein and we do not find any substance to entertaininstant appeal arising out of interim order passed by the learnedSingle Judge dt.06.11.2013. Consequently, in our considered view the special appeal iswholly bereft of merit and accordingly dismissed. However, wemake it clear that what has been observed by us is confined todisposal of special appeal arising out of order of the learnedSingle Judge dt.06.11.2013 and may not adversely affect rights ofthe parties in the pending proceedings before the learned SingleJudge. It has also been informed that the matter is coming upbefore the learned Single Judge for admission on 23.11.2013. Itwill be open for the parties to request before the learned SingleJudge for disposal of the writ petition. (J.K. Ranka),J. (Ajay Rastogi),J. Certificate - All corrections have been incorporated in the judgment/ order being emailed/ Vijay Singh Shekhawat/ PAJW