H.K. Kalchuri Education Trust vs. The Assistant Commissioner Of Income Tax 2[1]

1 W.P.No.19634/2012 W.P.No.19627/2012 W.P.No.20018/2012 W.P.No.20024/2012 W.P.No.20028/2012 14.2.2013 Shri Sumit Nema, Counsel for petitioners. Shri Sanjay Lal, Counsel for respondents. As identical question is involved in W.P.No.19634/2012- Hai Hay Kshetriya Education Society Vs. the Assistant Commissioner of Income Tax & others, W.P.No.19627/2012- H.K.Kalchuri Education Trust Vs. the Assistant Commissioner of Income Tax & others, W.P.No.20018/2012- Jai Narayan Shiksha Samiti Vs. the Assistant Commissioner of Income Tax & others, W.P.No.20024/2012-M/s Rishiraj Memorial Education and Welfare Society Vs. the Assistant Commissioner of Income Tax & others and W.P.No.20028/2012-M/s Rishiraj Singh Memorial Welfare Society Vs. the Assistant Commissioner of Income Tax & others, all these cases are decided by this common order. For the convenience, facts are taken from W.P.No.19634/2012. Petitioner has sought for following reliefs:- “1. To quash the order dated 8.11.2012 (P/4) passed by the respondent no.1. 2. To direct the respondent no.3 to decide the appeals of the petitioner for the assessment years 2004-05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 & 2010-11 expeditiously and judicially. 3. To issue any other writ, order or direction as this Hon'ble Court deems just and fair in the facts and circumstances of the case to give relief to the petitioner.” The case of the petitioner is that the petitioner, by an order passed by the ITAT before the assessment years in question, was found entitled for exemption from payment of income tax but the assessing officer has again imposed income tax from assessment years 2004-05 to 2010-11, which orders were assailed by the petitioner before the CIT (A). It is submitted that in view of the findings recorded by the ITAT earlier, petitioner is not liable for payment of income tax but inspite of this, a 2 W.P.No.19634/2012 W.P.No.19627/2012 W.P.No.20018/2012 W.P.No.20024/2012 W.P.No.20028/2012 14.2.2013 liability has been imposed upon the petitioner. It is submitted that against the order passed by the assessing officer, an appeal alongwith stay application is pending, but the stay application has not been decided till date, so petitioner has prayed to this Court for a direction to the assessing officer not to enforce the order of imposing tax till the decision by the CIT(A) in appeal. Shri Sanjay Lal, learned counsel for respondents submits that an identical question has been decided by a Division Bench of this Court in W.P.No.17145/2012-Satya Narayan Sharma Vs. The Asstt.Commissioner of Income Tax & others, decided on 8.11.2012, and similar directions may be issued. It is further submitted by him that in this case, there is an additional feature which deserves to be brought on record that after the earlier order passed by the ITAT there were search and seizure in the premises of the petitioner and because of this, the assessing officer had passed the aforesaid order, so the petitioner is not entitled for exemption and is liable to payment of income tax. Aforesaid contention is refuted by Shri Nema who has submitted that the order of the ITAT was after the search and seizure. Be that it may be, we are not deciding aforesaid question as the matter is sub-judice before the CIT(A) who has to hear and decide the matter in accordance with law and being an expert of the subject is in a position to consider and decide the controversy between the parties. In Satya Narayan Sharma (supra), a Division Bench of this Court considering the controversy held thus:- “Petitioner has sought following reliefs: 1. To direct the respondent No.1 & 3 to decide the stay applications of the petitioner. 2. To direct respondent No.3 to hear the appeals of the petitioner for the 3 W.P.No.19634/2012 W.P.No.19627/2012 W.P.No.20018/2012 W.P.No.20024/2012 W.P.No.20028/2012 14.2.2013 AY 2004-05 to 2010-11 expeditiously. 3. To issue any other writ, order or direction as this Hon. Court deems just and fair in the facts and circumstances of the case to give relief to the petitioner. Learned counsel for the petitioner submitted that the petitioner's appeal along with stay applications for the assessment year 2004-05 to 2010-11 are pending before respondent No.3 who may be directed to decide the appeal expeditiously. Learned counsel for the appellant also submitted that in these appeals prayer of the petitioner for staying recovery proceedings are also pending but these applications have not been considered till date. It is submitted by Shri Agrawal that respondent No.3 may be directed to hear and decide the application for stay and appeal also expeditiously. Reliance is placed to a judgment of Division Bench in W.P. 3488/11. Shri Lal, learned counsel for the respondent submitted that so far as appeals are concerned, these appeals involves block assessment for 7 assessment years which would take sufficient time as the assessments are to be made as per the search and seizure. It is also submitted by him that the application for stay was not filed alongwith the appeal in the month of January,2012 but they have been filed some where in the month of May,2012 so a reasonable time be allowed to respondent No.3 to consider and decide the aforesaid application and appeal.

Considering the fact that the stay application is pending with respondent No.3 for consideration, we find it appropriate to dispose of this petition with certain directions.

Petitioner to file an application in all the appeals for hearing on stay application and also for early hearing of the appeal. If any such prayer is made by the appellant within a period of two weeks before respondent No.3, respondent No.3 4 W.P.No.19634/2012 W.P.No.19627/2012 W.P.No.20018/2012 W.P.No.20024/2012 W.P.No.20028/2012 14.2.2013 shall consider and decide the application for stay expeditiously as far as possible within a period of 30 days from the date of such applications.

So far as the appeals are concerned, the respondent No.3 shall make an endeavour to decide the aforesaid appeals expeditiously as far as possible within a period of four months, as stated by Shri Lal. So far as the recovery against the petitioner is concerned. It is directed that for a period of one month or till the decision on the applications, whichever is later, no coercive action shall be taken against the petitioner for enforcing recovery in question. With the aforesaid directions, this application is disposed of.” As at present, we find that the question raised by the petitioners is identical, so we dispose of these petitions in view of the directions issued by the Division Bench in Satya Narayan Sharma (supra). Aforesaid directions shall be applicable in all the petitions as far as they are applicable. However, liberty is granted to the petitioners that in case application for stay is rejected or some order is passed against the petitioners, petitioners shall be entitled to assail the aforesaid order before an appropriate forum. With the aforesaid directions, these petitions are finally disposed of, with no order as to costs. C.C. as per rules.

(Krishn Kumar Lahoti)

(M.A.Siddiqui) Judge Judge C.