Wp/39166/2012 Of Ganna Sarvaiah v. Income-Tax Officer

THE HON’BLE SRI JUSTICE GODA RAGHURAMAND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO W.P.No.39166 of 2012 G. Sarvaiah V ITO, Nalgonda Dist and others THE HON’BLE SRI JUSTICE GODA RAGHURAMAND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO W.P.No.39166 of 2012 Order : ( Per Sri GR, J ) Heard Sri Krishna Koundinya, learnedSenior Counsl instructed by Sri SivaKarthikeya, learned counsel for the petitionerand Sri S.R.Ashok, learned Senior Counsel forthe respondent-Revenue. The communication dated 26.11.2012 ofthe 2[nd] respondent conveying the decision ofthe 3[rd] respondent is assailed in this writpetition. The petitioner is engaged in retail clothbusiness. Pursuant to a survey of thepetitioner’s business premises and initiation ofan order ofproceedings, eventually assessment dated 30.12.2011 was passed ona total income of Rs.36,85,970/-, raising a taxdemand of Rs.13,69,210/-. Aggrieved, the petitioner preferred an appeal to the CIT(Appeals)-VI, Hyderabad on 6-2-2012. The petitioner also applied for stay of collectionof demand by an application addressed to the3[rd] respondent. The decision of the 3[rd]respondent as communicated by the 2[nd]respondent reads : “ 50% of demand is stayed tilldisposal of first Appeal and thebalance demand to be collected in 5(Five) equal instalments payable in 5(Five) Months, subject to theconditions that no adjournment to besought before CIT(A).” It is the conceded position at the Bar that the 1[st] respondent in consultation with the 3[rd]respondent, has the jurisdiction and authorityto exercise discretion to consider an application seeking stay, with or without conditions,regarding collection of the tax assessedpending an appeal, under provisions of theIncome Tax Act 1961. Having regard to the nature of theadmitted jurisdiction of the first respondent inthis area, it is axiomatic that the jurisdiction iseither quasi judicial or administrative having aquasi judicial flavour. In any event, it is anexercise of public power requiring conformitywith established broad principles ofadministrative law; the principal norm beingthat a decision taken in exercise of publicpower must record reasons in justification ofthe conclusion. The impugned order is more inthe nature of an ipsi dixit containing no reasonsfor the decision. This infirmity is fatal to itsvitality and order must therefore perish. For the above reasons, thecommunication dated 26.11.2012 addressed bythe 2[nd] respondent is quashed and the matter is remitted for de novo consideration. Theappropriate authority among the respondentswho has the jurisdiction to exercise such powershall consider the matter afresh duly recordingreasons for exercise of the discretion to grantstay of collection of the levy of tax as assessedand pending appeal before the Commissionerof Income Tax (Appeals), Hyderabad. The writ petition is disposed ofaccordingly at the admission stage afterhearing learned counsel for the respectiveparties. ___________________ GODA RAGHURAM, J ________________________ M.S. RAMACHANDRA RAO, J Date : 20-12-12kk THE HON’BLE SRI JUSTICE GODA RAGHURAMAND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO W.P. No.39166 of 2012 Dated 20-12-2012