Wp/6395/2009 Of Sri Jagannatha Swamy, Sri Anjaneya Swamy And v. Income Tax Officer

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF MARCHTWO THOUSAND AND NINE PRESENT THE HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICEAND THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 6395 of 2009 Between: Sri Jagannatha Swamy, Sri Anjaneya Swamy & Sri VenkateswaraSwamy Temples, Lalapet, Guntur, rep. by its Executive Officer, R.RavanammaD/o. R. Gangaiah, aged 43 yrs. ..... PETITIONER AND 1 Income Tax Officer, Ward-1(2), Guntur. 2 The Joint Comissioner of Income Tax, Range-1, Guntur. 3 The Branch Manager, Andhra Bank, Kannavarithota, Guntur. 4 Bank of India, Kothapet Branch, Guntur. .....RESPONDENTS Petition under Article 226 of the constitution of India praying thatin the circumstances stated in the Affidavit filed herein the High Courtwill be pleased to issue a writ, order or direction one in the nature of Writof Mandamus declaring the action of the respondents in taking coercivesteps for the recovery of a sum of Rs.6,39,000/- pending disposal ofappeal before the Commissioner of Income Tax (Appeals), Guntur forthe Assessment year 2006-07 as bad in law, arbitrary and violative ofArt. 14 of the Constitution of India, and consequently set aside the noticedated 12.03.2009 & 16.03.2009 issued by the 1st respondent, IncomeTax Officer, Ward-I(2), Guntur, u/sec. 226(3) of the Income Tax Act, 1961and pass such other order or orders. Counsel for the Petitioner:MR.A.V.KRISHNA KOUNDINYA Counsel for the Respondents: MR.B.NARASIMHA SARMA The Court made the following : ORAL ORDER: (per Sri Anil R. Dave, CJ) The learned Advocate appearing for the petitioner seekspermission to delete respondents 3 and 4. Permission is granted. 2. Rule. Service of notice is waived by learned Standing Counsel forthe respondent Nos.1 and 2, Sri B. Narasimha Sarma. 3. The petitioner has been aggrieved by orders dt.12.3.2009 and16.3.2009 passed under Section 226(3) of the Income Tax Act byrespondent No.1 whereby, Andhra Bank, Kannavarithota, Guntur andBank of India, Kothapeta Branch, Guntur have been directed to remit theamount belonging to the petitioner to the Income Tax Department. 4. The facts giving rise to the present litigation, in a nutshell, are asunder. The petitioner is an assessee and could not pay the amount of taxand therefore the impugned orders have been passed. In pursuance ofassessment order dt.31.12.2008 for the assessment year 2006-2007, thepetitioner has to pay tax of Rs.6,39,200/-. Being aggrieved by the saidassessment order, the petitioner has preferred an appeal before theappellate authority, which is pending. An application for stay of recoveryof the income tax had also been filed. The same has been partlyallowed whereby the petitioner was directed to pay 50% of the amount oftax within a particular period. The said amount could not be paid by thepetitioner and therefore the impugned orders have been passed byrespondent No.1. 5. It has been submitted by the learned Advocate for the petitioner that 50% of the amount, which could not be paid by the petitioner, wouldbe paid within eight weeks from today. It has been submitted that, infact, approximately an amount of Rs.2,60,000/- had already been paidso far and approximately Rs.60,000/- is yet to be paid. Further, thepetitioner - temple requires some funds for its daily p u j a s andmaintenance of the temple. Simply because the aforesaid 50% of theamount was not paid by the petitioner, the stay, which was grantedearlier, has been vacated and therefore the entire amount of tax hasbecome payable and therefore the aforesaid two banks have beendirected to remit the entire amount lying with the said banks belonging tothe petitioner to respondent authorities. 5. It has been submitted by the learned Advocate for the petitioner that 50% of the amount, which could not be paid by the petitioner, wouldbe paid within eight weeks from today. It has been submitted that, infact, approximately an amount of Rs.2,60,000/- had already been paidso far and approximately Rs.60,000/- is yet to be paid. Further, thepetitioner - temple requires some funds for its daily p u j a s andmaintenance of the temple. Simply because the aforesaid 50% of theamount was not paid by the petitioner, the stay, which was grantedearlier, has been vacated and therefore the entire amount of tax hasbecome payable and therefore the aforesaid two banks have beendirected to remit the entire amount lying with the said banks belonging tothe petitioner to respondent authorities. 6. In view of the above submissions made by the learned Advocateappearing for the petitioner that remaining amount of 50% would be paidwithin eight weeks from today, the impugned orders are quashed andset aside on condition that the remaining amount of 50% of tax shall bepaid by the petitioner within eight weeks from today. 7. As the petitioner could not pay the 50% of the amount of tax, thestay which had been granted by the appellate authority has also beenvacated. We direct that the original position should be restored oncondition that the petitioner pays remaining amount of 50% within eightweeks from today. 8. It is clarified that if total 50% of the tax payable by the petitioner isnot paid within eight weeks from today, the stay of recovery granted bythe appellate authority shall automatically stand vacated. 9. In view of the above order, the petition stands disposed of asallowed with no order as to costs. ANIL R. DAVE, CJ R. SUBHASH REDDY, J 26.3.2009 bnr Note: Operative portion of the order may be communicated by WIRE at party’s costs to the respondents and the banks. (B.O) bnr