Wp/1360/2005 Of M/S. Pavani Structurals Private Limited v. The Commissioner Of Income Tax (Central)

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF FEBRUARYTWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICEM.H.S. ANSARI and THE HON'BLE MR JUSTICE T.CH.SURYA RAO WRIT PETITION NO : 1360 of 2005,1361 of 2005,1362 of 2005 and 1404 of 2005 1.W.P.NO.1360 OF 2005 Between: M/s. Pavani Structurals Private Limited, flat No. 302, Pavani Capitol, Khairtabad,Hyderabad. Rep. by its Managing Partner Mr. R. Narsimha Reddy, S/o. R. RamReddy, Aged about 49 Years . ..... PETITIONER AND 1 The Commissioner of Income Tax (Central), Central Circle, Shakar Bhavan, Basheerbagh, Hyderabad. 2 The Assistant Commissioner of Income Tax, Central Circle, Shakar Bhavan, 3rd Floor, Basheerbagh, Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court may be pleased topass an order or writ especially in the nature of Writ of Mandamus declaring the order of the Income Tax Appellate Tribunal in S.P.No. 160/H/2004 and the noticedated 28-01-2005 issued by the Respondents as arbitrary and unsustainable underlaw and pass such other orders 2.W.P.NO.1361 OF 2005 Between: M/s Pavani Estates, Flat No. 302, Pavani Capitol, Khairtabad, Hyderabad, Rep. byits Managing Partner Mr. R. Narsimha Reddy S/o R. Ram, Reddy, Aged 49 years. ..... PETITIONER AND 1 The Commissioner of Income Tax (Centtral), Central Circle, Shakar Bhavan, Basheerbagh, Hyderabad. 2 The Assistant Commissioner of Income Tax, Central Circle - 4, Shakar Bhavan, 3rd Floor, Basheerbagh, Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court may be pleased topass an order or writ especially in the nature of Writ of Mandamus declaring theorder of the Income Tax Appellate Tribunal in S.P.No. 163/H/2004 and the noticedated 28-1-2005 issued by the Respondents to the petitioner's Bankers as arbitraryand unsustainable under law and pass such other order(s) 3.W.P.NO.1362 OF 2005 Between: M/s.Pavani Housing & Finance, flat No.302, pavani capitol, Khairtabad,Hyderabad. rep.by its Managing partner, Mr.R.Narsimha Reddy, S/o.R.Ram Reddy, ..... PETITIONER AND 1 The Commissioner of Income Tax (Central), Central Circle, Shakar Bhavan, Basheerbagh, Hyderabad.2 The Assistant Commissioner of Income Tax, Central Circle- 4, Shakar Bhavan, 3rd floor Basheerbagh, Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court may be pleased topass an order or writ especially in the nature of writ of Mandamus declaring the orderof the Income Tax Appellate Tribunal in S.P.No.161/H/2004 and the notice dated 28-01-2005 issued by the Respondents to the petitioner's bankers as arbitrary andunsustainable under law and pass such other order(s) as this Hon'ble court deemsfit and proper in the circumstances of the case. 4.W.P.NO.1404 OF 2005 Between: M/s.Pavani Housing & Finance, flat No.302, pavani capitol, Khairtabad,Hyderabad. rep.by its Managing partner, Mr.R.Narsimha Reddy, S/o.R.Ram Reddy, ..... PETITIONER AND 1 The Commissioner of Income Tax (Central), Central Circle, Shakar Bhavan, Basheerbagh, Hyderabad.2 The Assistant Commissioner of Income Tax, Central Circle- 4, Shakar Bhavan, 3rd floor Basheerbagh, Hyderabad. .....RESPONDENTS 4.W.P.NO.1404 OF 2005 Between: M/s.Pavani Housing & Finance, flat No.302, pavani capitol, Khairtabad,Hyderabad. rep.by its Managing partner, Mr.R.Narsimha Reddy, S/o.R.Ram Reddy, ..... PETITIONER AND 1 The Commissioner of Income Tax (Central), Central Circle, Shakar Bhavan, Basheerbagh, Hyderabad.2 The Assistant Commissioner of Income Tax, Central Circle- 4, Shakar Bhavan, 3rd floor Basheerbagh, Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court may be pleased topass an order or writ especially in the nature of writ of Mandamus declaring the orderof the Income Tax Appellate Tribunal in S.P.No.162/H/2004 and the notice dated 28-01-2005 issued by the Respondents to the petitioner's bankers as arbitrary andunsustainable under law and pass such other order(s) as this Hon'ble court deemsfit and proper in the circumstances of the case. Counsel for the Petitioners (In all the Writ petitions): MR.S.RAVI Counsel for the Respondents (In all the Writ Petitions): MR.J.V.PRASADThe Court at the admission stage made the following: COMMON ORDER(Per the Hon’ble Sri Justice MHS Ansari) Heard learned counsel for the respective parties. Keeping in view the nature of relief prayed for and also having considered thefacts to which a brief reference shall be made hereinafter, we are inclined todispose of the instant Writ Petition at this stage without calling upon therespondents to file their counter affidavit and accordingly we may at the outsetclarify that any observations made in this judgment or order shall notprejudicially affect the respondents nor the averments made in the affidavit filedin support of the instant Writ Petition or the additional affidavit filed this day inCourt shall be construed as having been admitted by the respondentauthorities. It is thus, clarified that the averments made in the respectiveaffidavits of the petitioner are not admitted by the respondents. The petitioner has questioned the demand notice dated 28-01-2005 whereby,the petitioner was required to pay forthwith the amount specified therein andaction has been taken under Section 226 (3) of the Income Tax Act calling uponthe Manager, Union Bank of India, Khairatabad, Hyderabad/Bharat OverseasBank, Hyderabad, to pay forthwith the amounts specified therein due from thepetitioner. It is not in dispute that the appeal filed by the petitioner against the orders ofthe assessing authority and the Revisional Authority are pending before thelearned Income Tax Appellate Tribunal (for short ‘I.T.A.T.’). It is also not indispute that the appeals have been heard as long back as on 27-8-2004 andjudgments are awaited. From the order of the learned Tribunal dated 29-10-2004 we find that the petitioner assessee had sought stay of collection ofoutstanding demand pending disposal of the appeals. The said prayer wasrejected vide order dated 6-2-2004 on the ground that hearing of the appeal shall be expedited. However,on the day when the appeal was listed for hearing, it is seen from the said orderof I.T.A.T., that the case could not be heard and was adjourned. Meanwhileassessing authority issued garnishee notice to the petitioner’s bankerswhereupon assessee once again filed stay petition before the learned From the order of the learned Tribunal dated 29-10-2004 we find that the petitioner assessee had sought stay of collection ofoutstanding demand pending disposal of the appeals. The said prayer wasrejected vide order dated 6-2-2004 on the ground that hearing of the appeal shall be expedited. However,on the day when the appeal was listed for hearing, it is seen from the said orderof I.T.A.T., that the case could not be heard and was adjourned. Meanwhileassessing authority issued garnishee notice to the petitioner’s bankerswhereupon assessee once again filed stay petition before the learned Commisioner of Income Tax (for short ‘C.I.T.’) praying for lifting of the bankattachment. Learned C.I.T. allowed the said prayer and withdrew theattachment notice with a direction to the assessee to pay the outstandingdemand in instalments. The petitioner, however, not satisfied with the saidorders, moved learned I.T.A.T. with a request to stay collection of outstandingdemand. Learned I.T.A.T. considered the submissions of learned counsel forthe assessee and also the Departmental Representatives and after havingnoticed, the submissions of the learned Departmental Representatives that theA.O. has not taken any coercive measures in these appeals and “hence thereis no need for passing a fresh order”. Learned I.T.A.T. considering those factsand circumstances opined that there was no merit in the contention of theassessee and directed the assessee to pay instalments as directed by theI.T.A.T. in its order dated 6-5-2004. In the additional affidavit filed into Courttoday, we noticed that byu the aforesaid order dated 6-5-2004, a conditionalorder was passed granting restricted stay. It would be appropriate to extract therelevant portion which reads as under: “Thus to the extent indicated above, restricted stay is granted so theassessee up to 30[th] June after which payment of instalments to be paidby all the assesses would get continued in and from the month end ofJuly 2004 provided the Department does not ask for adjournment fromthe hearing fixed for 9[th] June 2004. It is superfluous for us to say that ifthe assessee would ask for adjournment from the hearing fixed for 9-6-2004 the instalment payment to be paid by the assessee would getrestored in and from the said month of June 2004 end.” Although submissions have been made that adjournments have been obtainedon behalf of the department which is disputed by the learned counsel for the 1[st]respondent, we are not inclined to go into those controversies. What is materialis the fact that the appeals have been heard by the learned I.T.A.T. andpronouncement of judgments are awaited. In such view of the matter moreparticularly keeping in view the fact that learned D.R. has submitted before thelearned I.T.A.T. that no coercive measures would be taken in the appealspending before I.T.A.T. by the A.O., we are inclined to dispose of the WritPetition with direction to withdraw the notice dated 28-01-2005 under Section 226 (3) of the Income Tax Act, 1961, issued to the Manager Union Bank ofIndia, Khairatabad, Hyderabad/Bharat Overseas Bank, Hyderabad, and not totake any coercive steps until pronouncement of the judgment by the learnedI.T.A.T. Thereafter it shall be open to the respondent authorities to affectrecoveries in accordance with law depending upon the result of the appeal. With directions as above, the Writ Petitions stand disposed of. No order as tocosts. ------------------------M.H.S.ANSARI, J Dated: 03-02-2005. HsdNote: Issue copy on priority basis.B/oHsd ---------------------------- T. CH.SURYA RAO, J Asst. Registrar. To 1 The Commissioner of Income Tax (Central), Central Circle, Shakar Bhavan, Basheerbagh, Hyderabad. 2 The Assistant Commissioner of Income Tax, Central Circle, Shakar Bhavan, 3rd Floor, Basheerbagh, Hyderabad. 3. 2 C.D. copies