DR.R.P.PATEL,HAHNEMAN HOUSE, vs. ASST.COMMR.OF INCOME TAX,CIRCLE-I,KTM.

The petitioner says that he had filed his returns, for the assessment years 1991-92, 1992-93 and 1993-94, within time under Section 143(1)(a) of the Income Tax Act ('the Act' for short) and that there was subsequently a search at his premises during which certain Indira Vikas Pathras were seized, leading to the re-opening of his assessments under Section 147 of the Act. He says that the Department, thereafter, completed the assessment under Section 143(3) read with Section 147 of the Act and that certain additional amounts were assessed against him, including interest under Sections 234B and 234C, for the three assessment years.

According to the petitioner, in the year 1998, the 'Kar Vivadh Samadhan Scheme' was introduced through the Finance Act, 1998 and that he had applied for settlement of the liability under the said Scheme. The petitioner says that even though he made the application as per the mandate of the Scheme and even though he was fully entitled to all the benefits under it, only a partial relief was given, compelling him to approach this Court by filing O.P.No. 7661/1999, consequentially leading to a judgment by a learned Single Judge of this Court, which is reported in 273 ITR 386. The petitioner says that though his contentions against levy of interest under Sections 234B and 234C of the Act have been accepted in this judgment, certain other benefits were denied, thus forcing him to file W.A.No.352/2005, which is stated to be still pending before this Court.

As per the petitioner, since the judgment of the learned Single Judge was stayed in W.A.No.352/2005, it was interpreted by the Department to assert that even the interest portion found in his favour in the said judgment would become recoverable and that steps were taken by them to do so. The petitioner says that he was, therefore, constrained to file these writ petitions, relying upon the judgment of this Court in Bahuleyan v. State of Kerala (2007 (4) KLT 402) and that notwithstanding the suspension of the operation of the judgment of the learned Single Judge, the declaration of law therein still continues to bind the second respondent herein. The petitioner adds that, in fact, W.A.No.352/2005 had already been heard by a Division Bench of this Court and is now reserved for judgment and that if this appeal is allowed, then the demand made against him would be of no consequence and in the alternative, even if the appeal is dismissed, then he would still obtain the benefits as have already been granted by the learned Single Judge in 273 ITR 386. 5. I have heard Sri.Remesh Cherian John, learned counsel appearing for the petitioner and Sri.Jose Joseph, learned Standing Counsel appearing for the respondents.

The facts involved in these cases are not very much in dispute, that a learned Judge has, in the judgment reported in 273 ITR 386, already granted benefit to the petitioner, as far as the levy of interest is concerned, is also not disputed. The only point of controversy is that the judgment of the learned Single Judge has been stayed in W.A.No.352/2005 and the Department, therefore, maintains that they are entitled to recover the amounts impugned in these writ petitions.

The learned Standing Counsel for the respondents vehemently contends that since the judgment of the learned Single Judge has already been stayed by a Division Bench, the petitioner would not be entitled to any of the reliefs granted to him through the said judgment and therefore, that they are entitled to recover the entire amounts as demanded against him.

Even when I hear the learned Standing Counsel for the respondents as afore, the undeniable fact remains that through the judgment of the learned Single Judge, the petitioner has already obtained benefits as far as the levy of interest is concerned. It is only if the judgment is set aside that the petitioner would become liable to make payment of the said amounts. However, it is also undisputed that W.A.No.352/2005 has been filed by the petitioner and that the judgment of the learned Single Judge has not been challenged by the Department until now. Therefore, in normal circumstances, it is unlikely that the Division Bench would set aside the judgment of the learned Single Judge and even if the appeal is to be dismissed, which is the worst case scenario for the petitioner, the judgment of the learned Single Judge is likely to be approved.

Therefore, I see no reason why the Department should now attempt to recover the amounts from the petitioner as per the impugned demand, particularly when I am told that W.A.No.352/2005 has been heard by a Division Bench of this Court and reserved for judgment. It is also a matter of prudence and judicial discipline that the respondents await the judgment in the writ appeal because if the said appeal is allowed, then the petitioner would be entitled to the benefits greater than what has been granted to him by the learned Single Judge and if, on the contrary, the appeal is dismissed, then the petitioner would still be entitled to the benefits granted to him by the learned Single Judge. Consequently, I am of the view that the respondents should await the judgment in W.A.No. 352/2005, which, in my view, would avert further litigation and controversy in future. In the afore circumstances, I order these writ petitions and direct the respondents to await and act explicitly as per the judgment of the learned Division Bench in W.A.No.352/2005, so that it will then obtain clarity as to the nature of the reliefs that would finally become entitled to the petitioner. I make it clear that once the judgment in W.A.No.352/2005 is delivered, the Department will be entitled to, subject to its terms, to recover the amounts from the petitioner, as is permitted therein, after following the procedural mandate of the Act.