Wp/102950/2015 Of Abhaykumar v. The Commissioner Of Income Tax (Appeals) Belagavi

IN THER HIGH COURT OF KARNATAKDHARWAD BENCH DATED THIS THE 6 DAY OF APRIL, 2017 BEEORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA WRIT PETITION NO.102950/2015& WRIT PETITION NOS.107670%671/2015 (T%IT) BETWEEN ABHAYKUMAR S/O BHARMAGOUDA PATIL,AGE:46 YEARS, OCC:FORMER MLA,R/O:24, "MALINI" BASAVAN GALLI,SHAHPUR, BELAGAVI - 590 003, (BY SRI. SANGRAM 8S KULKARNI, ADV. .. PETITIONER AND 1.THR COMMISSIONEROF INCOME TAX (APPEALS)BELAGAVI. OPP. DIST HOSPITAL,DR. B.R. AMBEDKAR ROAD,TQ: BELAGAVI, DIST: BELAGAVI-590 001. 2.ASSISTANT COMMISSIONEROF INCOME TAXCIRCLE-I, BELAGAVI, OPP. DIST HOSPITALDR. B.R. AMBEDKAR ROAD,BELAGAVI, TQ: BELAGAVI,DIST: BELAGAVI - 590 001. 3.TAX RECOVERY OFFICER,OPP. DIST HOSPITALDR. B.R. AMBEDKAR ROAD, BELAGAVI, TQ: BELAGAVI,DIST: BELAGAVI - 590 001, (BY SRI. Y V RAVIRAJ, ADV.) — RESPONDENTS THERESE WRIT PRTIITIONS ARE FILED UNDER ARTIC226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASHTHE IMPUGNED ORDER DATED 30/07/2014 PASSED BY 2 RESPONDENT IN NO.40/ACIT/CIR-IBGM/DOSSIER 1CR ANDABOVE/2014-15 VIDE ANNEXURE-C] THESE WRIT PETITIONS COMING ON FOR HEARING,THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Petitioner in the above writ petitions has sought for a writ of certiorari to quash the tmpugned order dated 30.07.2014 passedby the 2[2A]respondent vide Annexure — C. ? Heard Shri Sangram 8S. Kulkarni, learned counsel fothe petitioner and Shri Y.V.Raviraj, learned counsel for therespondents, onLearned counsel for the petitioner submits main appeal preferred by the petitioner challenging the assessmentotder passed by the respondent No.2 is pending before the First Appellate Authority(first respondent) and even though argument on behalf of the petitioner was addressed on the main appealduring the month of November 2016 and by now four monthshave gone, but till day appeal is not yet disposed of by the FirstAppellate Authority (1[:/]respondent). Therefore, he submitspetitioner would be satisfied if the First Appellate Authority 1sdirected to dispose of the appeal preferred by the petitioneragainst the assessment order Annexure — A dated 28.03.2014within a reasonable time and till then 2[2A]respondent may bedirected not to precipitate the matter and in such case, he wouldnot press the prayer made at SI. No.1. 4.Shr|Y.V.Ravitay,learnedcounsel for/4.respondents admits that the petitioner has preferred the appealbefore the First Appellate Authority (First Respondent)challenging the assessment order passed by the 2[2A]respondent atAnnexure-A. He submits, in fact, 2[2A]respondent had grantedstay for the assessment order Annexure — A, subject to petitionerdepositing 50% of the demand as indicated in Annexure — C.Petitioner failed to deposit 50% of the demand and avail the benefit of stay order. However, he submits respondents have noobjection for disposing of the writ petition by directing the 1[:/]respondent to dispose of the appeal preferred by the petitionerwithin a reasonable time, but he opposes the request made by thepetitioner for directing the 2[2A]respondent as not to precipitatethe matter till the disposal of the appeal by the first respondent. 5]The facts leading to these petitions are, 2[2A]respondent passed the assessment order on 28.03.2014 as perAnnexute -A, almost three years ago. The petitioner beforechallenging the said assessment order passed by the 2[2A]respondent by preferring an appeal before the 1[:/]respondentsubmitted an application before the 2[2A]respondent requesting notto initiate recovery proceedings for collection of tax pursuant tothe assessment order Annexure-A. The 2![2A]respondent partlyallowed the application and stayed the execution of the order atAnnexure-A subject to petitioner depositing 50% of the demandindicated in the assessment order Annexure -A. The petitioneragerieved by the said order of the second respondent challenged 5]The facts leading to these petitions are, 2[2A]respondent passed the assessment order on 28.03.2014 as perAnnexute -A, almost three years ago. The petitioner beforechallenging the said assessment order passed by the 2[2A]respondent by preferring an appeal before the 1[:/]respondentsubmitted an application before the 2[2A]respondent requesting notto initiate recovery proceedings for collection of tax pursuant tothe assessment order Annexure-A. The 2![2A]respondent partlyallowed the application and stayed the execution of the order atAnnexure-A subject to petitioner depositing 50% of the demandindicated in the assessment order Annexure -A. The petitioneragerieved by the said order of the second respondent challenged the same by preferring a writ petition before this Court in WritPetition Nos.107813 of 2014 and 108696-108697 of 2014 as perAnnexute-D. In the meantime petitioner challenged theassessment order passed by the 2[2A]respondent by preferring anappeal before the first respondent and hence this Court disposedof the writ petitions holding, since the petitioner has alreadychallenged the assessment order passed by the second respondentby preferring an appeal before the first respondent, he can verywell approach the first respondent and seek stay of Annexure-A,Accordingly, the petitioner filed an application in the appealpending before the first respondent seeking stay for execution andOperation of assessment order Annexure-A. The First AppellateAuthority rejected the stay application on the ground, when 2[2A]respondent granted stay for execution of stay order subject topetitioner depositing 50% of the demand indicated in theassessment order Annexure-A he failed to deposit 50% of thedemand and therefore stay cannot be granted. Consequently,respondent No.3 has issued demand notice demanding 50% of the demand indicated in the assessment order at Annexure-A,Therefore the request made by the petitioners directing 2[2A]respondent as not to precipitate the recovery proceedings tillconsideration of the appeal by the First respondent cannot beoranted. 6,Accotding to the petitioner, he has addressedaroument on the main appeal itself before the first respondent-First Appellate Authority during the month of November 2010.By now 4 months have elapsed. When the appeal was heard, theFirst Appellate Authority 1s expected to dispose of the appeal onmerits and in accordance with law. Therefore, justice would bemet if the first respondent-First Appellate Authority 1s directed todispose of the appeal itself 1f the appeal has been heard ascontended by the learned counsel for the petitioner. Hence, thefollowing order: Writ petitions stand allowed. The first respondent-the First Appellate Authority is hereby directed to dispose of the mainappeal itself on merits and 1n accordance with law as expeditiously ����� 5:�91::06E.�02�/4.�=5>/:�52A�>03>;@:/52>.:�1=�/4.�>5:.�5/�52B�35/. 80/402�/43..�@12/4:�=31@�/4.�A5/.�1=�3.>.09/�1=�5�>19B�1=�/40:13A.3� �A#%����� �:4�$�F@7