SMT. SHANTHALAKSHMI JAYARAM vs. THE PRINCIPAL COMMISSIONER OF INCOME TAX,

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 15TH DAY OF JUNE 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA WRIT PETITION NO.104066/2017 (T-IT) BETWEEN SMT. SHANTHALAKSHMI JAYARAM W/O V N JAYARAM, AGE : 60 YEARS,OCC : BUSINESS VINAY MANSION, #49, VIJAYANAGAR COLONY, BALLARI-583104. ... PETITIONER (By SRI CHYTHANYA K.K., ADVOCATE ) AND 1. THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, SEDAM ROAD, KALABURGI-585105. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, 2ND FLOOR, AYAKAR BHAVAN, STAFF ROAD, FORT, BALLARI-583102. 3. THE COMMISSIONER OF INCOME TAX (APPEALS), 3RD FLOOR, AAYAKAR BHAVAN, SEDAM ROAD, KALABURGI-585105. ... RESPONDENTS (By Sri. VIJAY MALALI, ADVOCATE FOR SRI Y.V. RAVIRAJ )

: 2 : THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH AS FAR AS THE PETITIONER IS CONCERNED BY AN APPROPRIATE WRIT OR ORDER IN THE NATURE OF CERTIORARI OR OTHERWISE THE IMPUGNED STAY ORDER F.NO. STAY OF DEMAND/Pr.CIT/KLB/2016-17 DATED:31.03.2017 ISSUED BY THE LEARNED FIRST RESPONDENT FOR THE AY 2012-2013, ENCLOSED IN ANNEXURE-A AND ETC. THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Petitioner has preferred this writ petition seeking the following reliefs: (A) Quash as far as the petitioner is concerned by an appropriate writ or order in the nature of certiorari or otherwise the impugned stay order F.No.stay of demand/Pr.CIT/KLB/2016-17 dated 31.03.2017 issued by the learned first respondent for the AY 2012-13 enclosed in Annexure A; (B) Quash as far as the petitioner is concerned by an appropriate writ or order in the nature of certiorari or otherwise the impugned letter No.Recovery/SLJ/ACIT/C-1/BLY/2016-17 dated 10.02.2017 issued by the learned second respondent to the Director of Mines and Geology, Bengaluru for the AY 2012-13 enclosed in Annexure B1;

: 3 : (C) Quash as far as the petitioner is concerned by an appropriate writ or order in the nature of certiorari or otherwise the impugned notices No.SLJ/226(3)/ACIT/BLY/2016-17 dated 10.12.2017 issued by the learned second respondent to the Branch Manager to State Bank of India, Canara Bank, Syndicate Bank and Indian Overseas Bank for the AY 2012- 13 enclosed in Annexure B2 to Annexure B5; (D) Direct the learned second respondent by an appropriate writ or order in the nature of mandamus or otherwise, not to take any coercive steps towards recovery of the disputed tax, as specified in demand notice enclosed in Annexure C till the disposal of appeal by the learned third respondent. (E) Direct the learned third respondent by an appropriate writ or order in the nature of mandamus or otherwise to hear and dispose the appeal at an early date for the AY 2012-13. (F) Grant such other reliefs as this Honourable High Court may think fit including the cost of this writ petition. 2. Heard Sri. Chythanya K.K., learned counsel for the petitioner and Sri Y.V. Raviraj, learned standing counsel for the respondents. Perused the writ petition and Annexures produced along with the writ petition.

: 4 : 3. The petitioner is an income tax assessee and has been paying income tax regularly. It is the case of the petitioner that 2nd respondent –Assessing Authority by assessment order dated 29.03.2016 has made an addition of Rs.22,68,84,040/- as against the return income of Rs.36,85,674/- and demanded a tax of Rs.10,18,78,983/-. The petitioner aggrieved by the assessment order passed by the second respondent as per Annexure-D challenged the same by preferring an appeal before the First Appellate Authority (3rd respondent) on 27.04.2016. As there is no provision in law for the petitioner to seek stay of the operation and execution of the Assessment order passed by the 2nd respondent in the appeal, petitioner has approached the 1st respondent requesting to grant stay and the 1st respondent has granted stay for the operation and execution of the assessment order passed by the 2nd respondent at Annexure-D subject to the petitioner depositing 15% of the demanded tax of Rs.10,18,78,983/- in installments at the rate of Rs.10,00,000/- per month. As petitioner has difficulty to comply with the conditions imposed by the first respondent while granting stay, has preferred this writ petition seeking reliefs stated supra. This Court granted

: 5 : stay of the operation and execution of the assessment order subject to the petitioner paying Rs.5,00,000/- per month as against Rs.10,00,000/- per month as ordered by the first respondent. 4. Learned counsel for the petitioner submits petitioner has been paying Rs.5,00,000/- per month as ordered by this Court and there is no disobedience of the interim order granted by this Court. He submits instead of keeping this writ petition pending before this Court, it may be disposed of by directing the First Appellate Authority(3rd respondent) to dispose of the appeal preferred by the petitioner expeditiously on merits and in accordance with law till then, stay order granted by this Court permitting the petitioner to pay Rs.5,00,000/- per month as against Rs.10,00,000/- as directed by the first respondent may be continued. 5. Sri. Y.V. Raviraj, learned standing counsel for the respondents submits, the petitioner has to pay huge tax as per the assessment order of the first respondent. However, he submits in the event of this Court disposing of the writ petition by directing

: 6 : the First Appellate Authority to dispose of the appeal preferred by the petitioner expeditiously, till then, the petitioner may be directed to continue to pay Rs.5,00,000/- as ordered by this Court while granting interim prayer without fail and it may be made subject to final result of the appeal. He further submits, petitioner may be directed to extend co-operation with the First Appellate Authority to dispose of the appeal expeditiously. 6. It is not in dispute that the petitioner aggrieved by the assessment order passed by the second respondent as per Annexure-D challenged the same by preferring an appeal before the First Appellate Authority on 27.04.2016. As there is no provision in law for the petitioner to seek stay of the operation and execution of the Assessment order passed by the 2nd respondent in the appeal, petitioner has approached the 1st respondent requesting to grant stay and the 1st respondent has granted stay for the operation and execution of the assessment order passed by the 2nd respondent at Annexure-D subject to the petitioner depositing 15% of the demanded tax of

: 7 : Rs.10,18,78,983/- in installments at the rate of Rs.10,00,000/- per month. This Court while granting interim order for the assessment order at Annexure-D stayed the assessment order subject to the petitioner paying Rs.5,00,000/- per month instead of Rs.10,00,000/- per month as ordered by the first respondent. In view of the above, justice would be met if writ petition is disposed of by directing the First Appellate Authority(3rd respondent)to dispose of the appeal preferred by the petitioner on 27.04.2016 on merits and in accordance with law within the time frame fixed by this Court with a direction to the petitioner to pay Rs.5,00,000/- per month till the disposal of the appeal as ordered by this Court. Hence the following order: The petition stands disposed of. The First Appellate Authority(3rd respondent) is hereby directed to dispose of the appeal preferred by the petitioner on 24.07.2016 as per Annexure -E on merits and in accordance with law after providing an opportunity of hearing to the petitioner within two months from the date of receipt of a copy of this order. Petitioner shall pay

: 8 : Rs.5,00,000/- per month till the disposal of the appeal regularly in terms of the interim order granted by this Court on 11.05.2016. This arrangement is subject to final result of the appeal pending before the First Appellate Authority(3rd respondent). Petitioner shall extend co-operation with the First Appellate Authority(3rd respondent) in order to enable the First Appellate Authority to dispose of the appeal within the time stipulated herein above. Sri Y.V. Raviraj, is granted four weeks time to file memo of appearance on behalf of the respondents. Sd/- JUDGE kmv