Wp/33278/2013 Of Hinduja Realtors Private Limited v. Asst Commissioner Of Income Tax

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6 DAY OF JANUARY 2014 BEFORE THE HON'BLE DR.JUSTICE JAWAD RAHIM $WRIT PETITION NO.33278/2013 (1IT) BETWEEN: HINDUJA REALTORS PRIVATE LIMITEDNO.7 & 12, INDUSTRIAL SUBURB.YESHWANTHPUR,BANGALORE-560022. ... PETITIONER (BY SRI ASHOK A KULAKARNI, ADV.) AND 1.ASSISTANT COMMISSIONER OF INCOME TAXCIRCLE 11(4), 5 FLOORR P BHAVAN, OPP RBINRUPATHUNGA ROADBANGALORE-560001CIRCLE 11(4), 5 FLOORR P BHAVAN, OPP RBINRUPATHUNGA ROADBANGALORE-560001 2.THE ASSISTANT REGISTRARINCOME TAX APPELLATE TRIBUNAL2 ‘3 , FKCCI COMPLEXGOLDEN JUBILEE BUILDINGNEXT TO MYSORE BANKK G ROAD|BANGALORE-560009.INCOME TAX APPELLATE TRIBUNAL2 ‘3 , FKCCI COMPLEXGOLDEN JUBILEE BUILDINGNEXT TO MYSORE BANKK G ROAD|BANGALORE-560009. ... RESPONDENTS (BY SRI K V ARAVIND, ADV. FOR R-1 & 2) THIS WRIT PETITION IS FILED UNDER ARTICLES276 AND 22727 OF THE CONSTITUTION OF INDIA WITH PRAYER TO DIRECT TO THE INCOME TAX APPELLATE|TRIBUNAL |THIRD RESPONDENT] TO DISPOSE OF AT AN)EARLY DATE THE APPEAL PENDING BEFORE IT ARISING|OUT OF THE ORDER OF ASESSMENT IN ANN-A DATED.24.17.7010. THIS PETITION COMING ON FOR’ PRELIMINARYHEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE.FOLLOWING:- ORDER Tne assessee is in writ action seeking direction inthe nature of mandamus to the Income Tax Appellate|Tribunal to hear and dispose of its appeal pending.considerationagainst.theorder|ofassessmentAnnexure ‘A’. 2. The respondents are duly represented by SriAravind, learned Standing counsel. Heard both sides. _ 3. The factual matrix borne from the records andthe fact situation manifesting from the submission of the learned counsel on both sides would show that the|petitioner, an assessee of Income Tax suffered an.order under Section 143(3) of the Income Tax Act for|the years 2008-09 dated 24.12.2010 whereby, the|Income Tax authorities have disallowed a sum otfRs.4,10,00,000/- incurred as expenditure by virtue of.an obligation in respect of readymade garments etc.| The petitioner questioned the liability in CIT (A) butthe appeal was dismissed on 2/7.1.2011. On theapplication filed for rectification of erroneous order,the Deputy Commissioner of Income Tax partlyrectified the calculation of interest on the borrowedcapital, leavinganetamountpayableat.Rs.59,02,911/- vide Annexure ‘B’. 4. The petitioner challenged the order CIT (A).through a statutory appeal before the Income TaxAppellate Tribunal which was heard partly from timeto time but has been adjourned for hearing to23./7.2013. On that date also, no progress was madeand it is still pending adjudication. — 5. It is further urged that along with the appeal filed before the appellate tribunal, the petitioner hasfiled an application seeking grant of stay of the orderpassed by the assessing authority dated 24.12.2010,the tribunal granted interim stay by an order dated5.3.2012 vide Annexure ‘C’ for a limited period of 180days and again on his similar application, the second order was passed on 7.12.2012 vide Annexure ‘Cl’,extending stay for a short period. Thereafter, the firstrespondent noticing the judgment of this Court opinedthat it Nas no legal competence to grant stayexceeding the period of 365 days and has thusdeclined to stay the operation of the order impugnedin the appeal. 6. The grievance of the petitioner is if interim.stay is not granted as sought for, staying theoperation of assessment order, the appeal filed by himwill become infructuous and will loose a valuable right.Therefore, the petitioner submits that till the disposalof the appeal, an interim order of stay be granted,staying operation of the order granted, imposingliability on him. 7. Learned counsel for the respondents, though.was justified in contending that recovery proceedingsbe allowed to continue, as otherwise the State willsuffer financially, yet, the State could not dispute thatthe petitioner has a statutory remedy of appeal 6. The grievance of the petitioner is if interim.stay is not granted as sought for, staying theoperation of assessment order, the appeal filed by himwill become infructuous and will loose a valuable right.Therefore, the petitioner submits that till the disposalof the appeal, an interim order of stay be granted,staying operation of the order granted, imposingliability on him. 7. Learned counsel for the respondents, though.was justified in contending that recovery proceedingsbe allowed to continue, as otherwise the State willsuffer financially, yet, the State could not dispute thatthe petitioner has a statutory remedy of appeal available to him. The State also could not dispute thepetitioner has availed the benefit of appeal and it ispending decision before the appellate tribunal. Onlythe difficulty is the appellate tribunal has no legalcompetence to grant stay beyond the period of 365days. As that period has elapsed, the tribunal hasexpressed its inability. In the circumstances, I amSatisfied, the petitioner has no other alternative orefficacious remedy to seek relief under the writjurisdiction of this Court. 7. It is also brought to the notice of this Courtthat|In|similar|circumstances,this.CourtIn|W.P.No.3787-3788/2013 had granted interim staywhile directing the tribunal to dispose of the appealwithin a specified period. Consistency of considerationrequires that the view taken by the co-ordinate Benchof this Court be honoured and in that view, I amSatisfied that the petitioner shall succeed in hisattempt. Writ petition is allowed directing the IncomeTax Appellate Tribunal to take on board the appeal preferred by the petitioner in Appeal No.ITA 144/2012 and to dispose of the same as expeditiously as possible within the outer limit of six weeks from the date of receipt of a copy of this order and till thedisposal of that appeal, the first respondent is directed not to initiate any recovery proceedings against thepetitioner. — nas. Sd/- JUDGE|