Loading judgment…
No AI summary yet for this case.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF JUNE, 2013
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
W.P.NOS.3787-3788 /2013 (T-IT)
BETWEEN:
M/s Amblee Hotels Ltd., (Amalgamated with M/s Amblee Resorts International (P) Ltd., PB No.17, Srirangapatna, Mandya District Mysore Zone, Represented by its Chairman & Managing Director, Sri. M.S.Pasha, Aged about 64 years, Son of Sri.K.K. Ahmed
....Petitioner
(By Sri.S.Parthasarathi, Advocate)
AND:
The Income Tax Officer,
Ward-11(1),
5th floor, Nrupathunga Road,
R.P.Bhavan,
Bangalore-560 001.
The Tax Recovery Officer, Range-11,
2 5th floor, Nrupathunga Road,
R.P.Bhavan,
Bangalore-560 001.
…Respondents
(By Sri.K.V.Aravind, Advocate for R-1& R-2)
These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the notice No.08/TRO/R-11/2012-13 dated 09.11.2012 issued by second respondent vide Annexure-L.
These writ petitions coming on for preliminary hearing this day, the Court made the following:
ORDER Heard the learned advocates appearing for the parties. Perused the case papers.
Petitioner/assessee filed its return of income for the assessment years 1995-96 and 1996-97 and a notice under section 148 of the Income Tax Act, 1961 came to be issued by first respondent and thereafter returns filed by petitioner was considered and assessment order under section 143(3) read with section 147 of Income Tax Act 1961 was passed by
3 making certain additions for the relevant assessment years. Being aggrieved by the same assessee filed appeal before CIT (appeals) who confirmed the additions subject to conferment/verification of assessee’s claim. One of the directors of assessee company being aggrieved by the order of CIT(A) filed appeals before Income Tax Appellate Tribunal (ITAT for brevity). Tribunal by its order dated 03.02.2005 and 22.03.2005 set aside the order of first appellate authority as also order of assessment by giving a further direction to form a fresh assessment order after affording the assessee an opportunity. Order of Tribunal was given effect to by the first respondent assessing officer by passing fresh assessment orders dated 29.03.2006 and 27.12.2006. Aggrieved by the said orders appeals were filed to the CIT (Appeals) who by common order dated 01.03.2010 allowed the appeal but on the issue of amalgamation he confirmed the findings recorded by assessing officer that no amalgamation had taken place during the period relevant to the assessment year.
4 3. Being aggrieved by order passed by CIT (Appeals) assessee filed further appeal before ITAT, Bangalore Bench in ITA 839 & 840(BNG)/2009 and an application for stay also came to be filed as per Annexure-F. Tribunal after hearing the learned counsel appearing for assessee and department by its order dated 03.12.2010 Annexure-G granted stay of recovery of disputed demand and ordered for listing the appeals for hearing on 30.12.2010. Since the order of stay was for a period of 180 days had expired petitioner filed another application and sought for further extension of stay by another 180 days. Tribunal by its order dated 01.07.2011 Annexure-H extended the stay already granted by it for further 180 days or till disposal of the appeal whichever was earlier. On expiry of the extended period petitioner approached the tribunal for further extension, contending appeals were not being heard and it was being adjourned at the request of Department. However, tribunal is said to have vacated the stay following the judgment of this court rendered
5 in ITA 160/2012 in the matter of CIT Vs M/s.Ecom Gill Coffee Trading Private Limited.
It is the contention of learned counsel appearing for the assessee that the appeals were not heard on merits by the Tribunal and as such interim order of stay was extended on 24.02.2012 vide Anneuxre-J for a further period of 180 days or till the disposal of the appeal by noticing that it was being adjourned from time to time at the request of departmental’s representative for one reason or the other and it was not being heard and as such the petitioner/assessee has sought for stay of recovery till disposal of the appeal before tribunal. It is contended by the learned counsel for assessee that Tribunal without considering the plea of the petitioner had vacated the stay by following the view of Division Bench in the case of M/s.Ecom Gill Coffee Trading Private Limited reported in ITA No.160/2012 whereunder this court has held that stay cannot be extended by the Tribunal beyond the period of 365 days and following the dicta laid down by
6 Division Bench of this court it has declined to extend the stay granted earlier. Per contra, Sri.K.V.Aravind, learned advocate for respondent would support the order of the tribunal by contending that it is in line with the order of this court passed in ITA 160/2012 and he would also contend that petitioner has not placed any material before this court to demonstrate that appeals were adjourned at the instance of department.
Having heard the learned Advocates, I am of the view it would be appropriate to note the findings recorded by the Tribunal on 24.02.2012 while extending the interim stay. It reads as under:
“3. Having heard both the parties and having considered the material on record, we find that the Tribunal had earlier granted unconditional stay on 08.12.2010 which has been extended by order dated 01.07.2011. As the delay in disposal of the appeal is not attributable to the assessee and the appeal is
7 fixed for hearing on 04.04.2012 we are inclined to extend the stay for a further period of 180 days or till the disposal of the appeal whichever is earlier. The S.P accordingly, allowed”.
This would clearly indicate that the contentions raised by the assessee in this writ petition which is to the effect that appeal was being adjourned before the Tribunal from time to time at the behest of the department deserves to be accepted since said finding is recorded by the tribunal based on the order sheet.
Be that as it may. The fact remains that interim order granted on 03.12.2010 was extended from time to time and it was in operation till 31.08.2012. In that view of the matter I am of the considered view that ends of justice would be met if a direction is issued to the jurisdictional Tribunal to dispose of the appeal namely ITA No.839 & 840 (BNG)/2009 pending before it within an outer limit of six weeks from today
8 and by also making it clear that recovery proceedings will stand stayed for a period of six weeks by taking into consideration that Tribunal has already granted stay which was extended from time to time. Ordered accordingly.
It is made clear that stay of recovery proceedings is based on the premise that stay order had been granted by the Tribunal was in force and appeal having not been taken up for disposal for whatsoever reason.
Sri.K.V.Aravind, panel counsel for respondents 1 and 2 is permitted to file memo of appearance within a period of four weeks from today.
Sd/-
JUDGE
SBN