Wp/24335/2004 Of M/S Anuradha Timber Estates v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY EIGHTH DAY OF DECEMBERTWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE M.H.S. ANSARIand THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 24335 of 2004 Between: M/s Anuradha Timber Estates 97/A, Road No.14, Jubilee Hills,Hyderabad rep. by its Partner, Mr.Ch.Tirupathi Rao. AND ..... PETITIONER 1 The Assistant Commissioner of Income Tax Circle-6(1), Buddha Bhavan, M.G.Road Secunderabad. 2 The Tax Recovery Officer-6 Income Tax Department, 6th Floor, Budha Bhavan, M.G.Road, Secunderabad. 3 The Commissioner of Income Tax AP-3, Basheerbagh,Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India prayingthat in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue a writ of Certiorari or any otherappropriate writ or order or direction quashing the order of the IncomeTax Appellate Tribunal dated 20.12.2004 passed in stay petitionNo.181/Hyd/2004 in ITA.NO.61/Hyd/2004, as unreasonable, harsh,onerous and unjustified and consequently restrain the Respondentsfrom taking any coercive steps for collection of disputed Tax andinterest levied for the assessment year 2000-01 pending disposal ofthe main appeal in ITA No.61/Hyd/2004 before the Income TaxAppellate Tribunal, Hyderabad Bench and pass such other order ororders. Counsel for the Petitioner:Dr.N.R.SIVA SWAMY Counsel for the Respondent Nos 1 to 3 .: MR.B.NARASIMHASHARMA (SC FOR INCOME TAX) The Court made the following : O R D E R (Per MHSA,J) Heard Dr. N.R.Sivaswamy learned counsel for the petitioner and SriB.Narasimha Sharma, learned Standing Counsel for Income Tax. 2 . Keeping in view the nature of relief prayed for and also thesubmissions made at the bar, we are inclined to dispose of the instant writ petition at the stage of admission, instead of keeping thesame pending on the file of this Court. 3. It appears that the learned Tribunal vacated the stay granted by itearlier, in view of the statutory provisions contained in the secondproviso to Section 254 (2A) of the Income Tax Act, 1961. We wouldnot normally interfere with the discretionary order of the learnedTribunal, more so, when the stay petition filed by the petitioner hasbeen allowed in part by granting installments and also listing thematter for hearing on 31.1.2005. However keeping in view that therewas a conditional stay granted by the Tribunal vide its order dated27.2.2004 and the said condition had been complied with by thepetitioner – assessee and that the vacation of stay is for the reasonsas noted supra, we modify the order of the learned Tribunal as under: “ Petitioner shall pay a sum of Rs.5,00,000/- (Rupees five lakhs only)on or before 31.12.2004 and the balance amount as stipulated inclause (a) of the order of the Tribunal under challenge, on or before15.01.2005 and thereafter petitioner shall continue to pay the balanceamount in installments of Rs.5,00,000/- (Rupees five lakhs only) on or before 15[th] day of each succeeding month, till the disposal of appealbefore the learned Tribunal; or if the appeal is disposed of, thensubject to orders that may be passed by the Tribunal in the saidappeal, it shall be open for the respondent authorities to recover thearrears of tax due in accordance with law or to refund the tax inexcess, if any, collected from the assessee, as the case may be.” 4 . With the directions and observations as above, writ petition isaccordingly disposed of without going into the merits of the maincontroversy. No costs. 5. All questions are accordingly left open with respect to the meritsand it shall be open to the learned Tribunal to dispose of the appealpending before it in accordance with law, uninfluenced by anyobservations or statements made in this judgment and order. before 15[th] day of each succeeding month, till the disposal of appealbefore the learned Tribunal; or if the appeal is disposed of, thensubject to orders that may be passed by the Tribunal in the saidappeal, it shall be open for the respondent authorities to recover thearrears of tax due in accordance with law or to refund the tax inexcess, if any, collected from the assessee, as the case may be.” 4 . With the directions and observations as above, writ petition isaccordingly disposed of without going into the merits of the maincontroversy. No costs. 5. All questions are accordingly left open with respect to the meritsand it shall be open to the learned Tribunal to dispose of the appealpending before it in accordance with law, uninfluenced by anyobservations or statements made in this judgment and order. 6 . As no counter affidavit has been called for or relied upon, theaverments made in the writ petition are deemed not admitted andshall not, therefore, prejudice the respondents in any manner. ------------------------------ M.H.S.ANSARI, J ---------------------------------- V.ESHWARAIAH, J Note: CC on priority basis. To 1 The Assistant Commissioner of Income Tax Circle-6(1), Buddha Bhavan, M.G.Road Secunderabad. 2 The Tax Recovery Officer-6 Income Tax Department, 6th Floor, Budha Bhavan, M.G.Road, Secunderabad. 3 The Commissioner of Income Tax AP-3, Basheerbagh,Hyderabad. 4. Two C.D. copies.