FATIMA W/O. NASIRUDDIN BAGAWAN, vs. THE ADDITIONAL COMMISSIONER FOR INCOME-TAX,

IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH, AT DHARWAD DATED THIS THE 27 TH DAY OF MARCH 2012 BEFORE THE HON’BLE MR.JUSTICE DILIP B. BHOSALE WRIT PETITION No. 66754-66756/2011 (T-IT) BETWEEN: FATIMA W/O. NASIRUDDIN BAGAWAN, AGE. 43 YEARS, 0CC. AGRI. 2. NASIRUDDIN Sb. PAPLUSAB BAGAWAN AGE. 54 YEARS, 0CC. AGRI., & BUSINESS. 3. RAHEESAHMED S/O. NASIRUDDIN BAGAWAN AGE. 24 YEARS, 0CC. AGRI., & BUSINESS. ALL ARE R/O.VIDYANAGAR, HUBLI, TQ. HUBLI, DIST. DHARWAD. PETITIONERS (BY SRI F.V. PATIL, ADV.) AND: THE ADDITIONAL COMMISSIONER FOR INCOME TAX, CIRCLE-I,

NAVANAGAR, TQ. HUBLI, DIST. DHARWAD. 2. THE JOINT COMMISSIONER OF INCOME TAX, RANGE-i, NAVANAGAR, HUBLI, DIST. DHARWAD. 3. THE DEPUTY COMMISSIONER (APPEALS) OF INCOME TAX AND COMMISSIONER OF INCOME TAX (APPEALS), NAVANAGAR, HUBLI, DIST.DHARWAD. 4. THE INCOME TAX OFFICER, WARD-i(i), NAVANAGAR, HUBLI, DIST. DHARWAD. RESPONDENTS (BY SRI. Y.V. RAVIRAJ, ADV.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENT Nos. i AND 3 TO CONSIDER THE STAY APPLICATION DATED 14.02.20i1 VIDE ANNEXURE-D IN APPEAL VIDE ANNEXURES-B, Bi AND B2 ON THE FILE OF RESPONDENT NOS. i AND 2. THESE WRIT PETITIONS COMING ON FOR ORDERS ON THIS DAY, THE COURT MADE THE FOLLOWING: PC: Heard learned counsel for the petitioners. 2. These writ petitions are directed against the communication/order (An nexure-G) dated 22.09.20 ii, issued by The Joint Commissioner of Income Tax, Range-i,

Hubli, whereby he reviewed the instalment scheme granted vide letter dated 15.06.2011 and directed the petitioners to pay 50% of the demand raised by 15.10.2011. The petitioners also prayed for direction to the Appellate Authority viz., The Commissioner of Income Tax (Appeal), Hubli, to consider the stay application dated 14.02.2011 filed along with. 3. The petitioners have filed appeal against the order of assessment passed by the Income Tax Officer dated 29.12.2010 under Section 249 of the Income Tax Act, 1961. The assessment order was passed on 29.12.2010 and the appeal and application for stay were filed on 04.02.2011 and 14.02.2011 respectively. The appeal and the application for stay are still pending for hearing. In other words, even the application for stay has not been considered by the Appellate Authority till this date. In the meanwhile, it appears that the petitioners had approached the Joint Commissioner with an application for stay of demand. The demand was raised on the basis of the order of assessment passed by the Income

4 Tax Officer on 29.12.2010. On that application, seekIng stay of the demand, the Joint CQmmissioner of Income Tax on 15.07.2011 passed the following order- “Consequent to the payment of Ps.25 Iakhs on 13/07/2011, and discussions with you and your authorized representative, you are required to pay Rs.5 lakhs per month for the months of August, September and October 2011, if no order of CIT (A) Is received. The stay of balance of the demand will be reviewed In the first week of November 2011. 4. From bare perusal of this order, It appears that, stay of balance of the demand was to be reviewed by the Joint Commissioner of Income Tax in the first week of November 2011. Accordihgiy, on 22.09.2011 the Joint Commissioner issued the following order, which is impugned in the present writ petition ‘7 have been directed to review the instalment scheme granted In letter dt.15.06.2011. After carefál consIderation, it has been decided that you are required to pay

50% of the demand raised by 15 th October 2011 and produce the challan before the Assessing Officer. Kindly note that coercive action will be initiated if the above requirement is not complied with. Please acknowledge receipt of this letter.” 5. This order (dated 22O9.2O11) is the subject matter of the present writ petition. On 13J0.2011 the writ petition was heard for admission, when the foflowing order was passed Heard the learned Senior Counsel for the petitioners. Issue notice to the respondents. Petitioners’ counsel is also permitted to serve the standing counsel of the respondent/Department. Learned Senior counsel appearing for the petitioners has submitted that the order dated 1506.2011 has been complied with and that the appeal filed by the petitioners before the Appellate Commissioner is posted on 20.10.2011 for consideration. He also submitted that in the

6 interregnum, the review order dated 22.09.2011 stating that 50% of the demand has to be made by 15.10.2011 was unnecessary in view of the compliance of the order dated 15.06.2011 and since the appellant authority is seized of the appeal. Under the circumstances, the order dated 22.09.2011 is stayed. The stay of the order would, however, not come in the way of the appellate authority considering the application filed by the petitioners for stay of the demand made pursuant to the assessment and pass necessary orders on the said application for stay or to consider the appeal on merits finally.” / 6. This Court is informed that despite the Order dated 13.10.2011, the application for stay has not been heard by the Appellate Authority so far and as a result thereof, the order dated 22.09.2011 remained stayed till this date. Having regard to the facts and circumstances of the case, I fail to understand as to why the Appellate Authority has not passed any order on the application for stay and/or not heard

7 the appeal itself filed by the petitioners. Learned counsel for the petitioners submits that the petitioners are prepared to deposit another Rs20,00,000/- within a period of four weeks from today to show their bonafides. His statement is recorded and accepted. 7. In the circumstances, I am satisfied that this writ petition need not be kept pending any further and can be conveniently disposed of by the following- ORDER A) The Appellate Authority shall consider and decide the stay application filed by the petitioners dated 14.02.2011 as expeditiously as possible, preferably within a period of 8 weeks from today. The petitioners are directed to produce copy of this order before the Appellate Authority within a period of 10 days from today. This shall not preclude the Appellate Authority from deciding the appeal itself on merits expeditiously.

8 The order of demand dated 22.09.2011 impugned in the present writ petition to render ineffective, It would be open to the Joint Commissioner or any other competent Officer of the Income Tax to pass fresh order of demand, as per the assessment order dated 29.12.2010, immediately after the order is passed by the Appellate Authority on the stay application. B) The Appellate Authority shall decide the appeal/stay application on merits in accordance with law and uninfluenced by this order. I make it clear that, while passing this order I have not examined merits of the case. With these observations, these writ petitions are disposed of. sal 31JDG hnm/