Wpa/5958/2023 Of The Rigle Factory Co-Op Socieity Ltd v. The Assistant Commissioner Of Income Tax,Circle 49(1),Kol And Ors

Heard learned Counsel appearing for the parties. By order dated January 03, 2023, this Court haddirected the Authorities to grant an opportunity of hearing tothe petitioner with regard to stay application and the appealand pass a reasoned order after granting an opportunity ofhearing to the petitioner within a period of six weeks. Subsequent to the order passed by this Court, TheAssistant Commissioner of Income Tax, Circle-49(I),Kolkata has passed an order dated February 23, 2023. Therelevant portion of the order, being paragraphs 6 and 8 arequoted hereinbelow :- “6. In pursuance to the direction of the Hon’ble HighCourt of Calcutta dated 03/01/2023, a letter dated11/01/2023 vide DIN & Letter No. ITBA/RCV/F/17/2022-23/1048622137(1) was issued to the assessee AOPproviding an opportunity to submit all the particulars inconnection with the demant outstanding for the AY 2017-2018 on or within 20/01/2023 in response, the assesseeAOP through Shri Manish Kumar Pandey, ManagingDirector appeared and filed a submission with petition U/s220(6) and enclosures for the stay of the demand ofRs.3,77,62,050/-. In the said leter, the assessee AOPemphasized upon the facts of the case and requested torefer the matter before the Ld. Pr. CIT (Jurisdictional) inorder to consider the prayer to grant stay without anydeposit in terms of clause 4(B)(b) of the OM No. F. 404/72/93 dated 29.02.2016 which was subsequentlymodified on 31.07.2017. 8. In this case, the assessee failed to make any payment offailed to file any undertaking that they would cooperate inthe early disposal of appeal. If any such application hasbeen made, no copy of such was filed or produced duringthe hearing on 20/01/2023. However, as per the request ofthe assessee, the application was forwarded to the PCIT-5,Kolkata through proper channel for consideration of thesame vide this office letter F. No. ACIT Circle49(1)/Kol/High Court matter/2022-23/149 dated30/01/2023. In connection to the said letter dated 30/01/2023, the Ld.PCIT-5, Kolkata vide letter No. 11380 dated 16.02.2023gave a direction, which is reproduced as under:- ‘Please reject the stay petition’.” It is amply clear from the said order that theAuthorities granted hearing and sought to take approvalfrom the Principal Commissioner of Income Tax-5, Kolkatabefore passing the order. That was not the direction passedby this Court. The Authority, who hears the petitioner shallpass the reasoned order and that was purport of the order,passed on January 03, 2023. In the light of the above observation, the impugnedorder is quashed and set aside with a direction upon thePrincipal Commissioner of Income Tax to personally grantan opportunity of hearing to the petitioner and thereafterpass an order with regard to the stay application filed by thepetitioner. It is to be further noted that by the order passed onJanuary 03, 2023 there was a specific direction for hearingout the main appeal within a period of six weeks. This order has also not been complied with. Accordingly, the Commissioner of Income Tax(Appeals), Kolkata is directed to have the main matter heardexpeditiously within a period of six weeks from date. I make it clear that the petitioner shall not seek anyadjournment from the Principal Commissioner of IncomeTax or from the Commissioner of Income Tax (Appeals)with regard to hearing of the above matters. Reply filed by the petitioner before theCommissioner of Income Tax (Appeals) shall be placedbefore the Principal Commissioner of Income Tax as theresponse of the petitioner. The Principal Commissioner of Income Tax nowrequires only to fix a date of hearing of the stay application. With the aforesaid directions the instant writpetition is disposed of. There shall be no further order as to costs. All parties are to act on the server copy of this orderduly downloaded from the official website of this court. Urgent photostat copy of the order, if applied for, besupplied to the parties on priority basis on compliance of allnecessary formalities. ( Shekhar B. Saraf, J.)