THE KOLLAD SERVICE CO-OPERATIVE BANK LTD.NO.1830, vs. THE INCOME TAX OFFICER,

The learned counsel appearing on behalf of the petitioner submits that against the assessment order, the petitioner preferred Ext. P3 appeal dated 16.01.2020. Another demand notice dated 30.01.2020, for seeking the stay of the demand by deposit of 20%, was issued vide Ext. P4. Thereafter, vide Ext. P5 dated 04.03.2020 Income Tax Department has realised the amount by issuing garnishee notice to the banker of the petitioner. By way of additional documents, it is evident that despite having filed the rectification application, there was an error apparent on record, owing to non-adherence of the clearance of the directions contained in the circular dated 21.08.1969 and 05.07.2013 with regard to the stay of the recovery till the pendency of the appeal realizing it to be an error apparant on record preferred a rectification application Ext. P8 dated 29.01.2020. The petitioner had also preferred stay application along with appeal before the 1st respondent, which has been rejected vide Ext. P7 dated 24.01.2020. 3. The petitioner preferred a rectification application before the 1st respondent on 29.01.2020 and the same has been rejected vide Ext. P9 dated 30.01.2020. Another rectification application was filed as Ext. P11, which has been dismissed by Ext. P2 without assigning any reasons. Therefore, the order being without jurisdiction is liable to be quashed.

Per contra, learned counsel for the petitioner submits that the bank has already realised the outstanding amount a sum of Rs. 13 lakhs and odd vide Ext. P5. Petitioner is not justified in moving perpetual applications for rectification and there was no error apparent on record. The demand of 20% was in accordance with the prevailing instructions and therefore, the old instructions were not of having any binding effect. The judgment of this court in not imposing a condition of 20% for grant of stay is not in rem but in persona and urges this Court for dismissal of this writ petition.

Having heard the learned counsel for the parties and apprised the paper book, the grievances of the petitioner at this stage of the matter in view of the facts as narrated above, can be vindicated by the issuance of direction to the 2nd respondent to decide the appeal Ext. P3 dated 16.01.2020 as expeditiously as possible within a period of 45 days from the date of production of certified copy of this order. In case the petitioner succeeds in Ext. P3 appeal the amount so deposited, as under taken by Mr. Jose Joseph, would be refunded. If otherwise, the petitioner would have a grievance to seek the litigation in accordance with law. With these observations and directions, the above Writ Petition (Civil) will stand dismissed. (Sd/-) AMIT RAWAL LU JUDGE