ABHAYKUMAR S/O BHARMAGOUDA PATIL, vs. THE COMMISSIONER OF INCOME TAX (APPEALS) BELAGAVI.

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 6TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA WRIT PETITION NO.102950/2015 & WRIT PETITION NOS.107670-671/2015 (T-IT) BETWEEN ABHAYKUMAR S/O BHARMAGOUDA PATIL, AGE:46 YEARS, OCC:FORMER MLA, R/O:24, "MALINI" BASAVAN GALLI, SHAHPUR, BELAGAVI - 590 003. ... PETITIONER (BY SRI. SANGRAM S KULKARNI, ADV.) AND 1. THE COMMISSIONER OF INCOME TAX (APPEALS) BELAGAVI. OPP. DIST HOSPITAL, DR. B.R. AMBEDKAR ROAD, TQ: BELAGAVI, DIST: BELAGAVI-590 001. 2. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-I, BELAGAVI, OPP. DIST HOSPITAL DR. B.R. AMBEDKAR ROAD, BELAGAVI, TQ: BELAGAVI, DIST: BELAGAVI - 590 001. 3. TAX RECOVERY OFFICER, OPP. DIST HOSPITAL DR. B.R. AMBEDKAR ROAD,

: 2 : BELAGAVI, TQ: BELAGAVI, DIST: BELAGAVI - 590 001. ... RESPONDENTS (BY SRI. Y V RAVIRAJ, ADV.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 30/07/2014 PASSED BY 2ND RESPONDENT IN NO.40/ACIT/CIR-IBGM/DOSSIER 1CR AND ABOVE/2014-15 VIDE ANNEXURE-C. THESE WRIT PETITIONS COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Petitioner in the above writ petitions has sought for a writ of certiorari to quash the impugned order dated 30.07.2014 passed by the 2nd respondent vide Annexure – C. 2. Heard Shri Sangram S. Kulkarni, learned counsel for the petitioner and Shri Y.V.Raviraj, learned counsel for the respondents. 3. Learned counsel for the petitioner submits main appeal preferred by the petitioner challenging the assessment order passed by the respondent No.2 is pending before the First Appellate Authority(first respondent) and even though argument

: 3 : on behalf of the petitioner was addressed on the main appeal during the month of November 2016 and by now four months have gone, but till day appeal is not yet disposed of by the First Appellate Authority (1st respondent). Therefore, he submits petitioner would be satisfied if the First Appellate Authority is directed to dispose of the appeal preferred by the petitioner against the assessment order Annexure – A dated 28.03.2014 within a reasonable time and till then 2nd respondent may be directed not to precipitate the matter and in such case, he would not press the prayer made at Sl. No.1. 4. Shri Y.V.Raviraj, learned counsel for the respondents admits that the petitioner has preferred the appeal before the First Appellate Authority (First Respondent) challenging the assessment order passed by the 2nd respondent at Annexure-A. He submits, in fact, 2nd respondent had granted stay for the assessment order Annexure – A, subject to petitioner depositing 50% of the demand as indicated in Annexure – C. Petitioner failed to deposit 50% of the demand and avail the

: 4 : benefit of stay order. However, he submits respondents have no objection for disposing of the writ petition by directing the 1st respondent to dispose of the appeal preferred by the petitioner within a reasonable time, but he opposes the request made by the petitioner for directing the 2nd respondent as not to precipitate the matter till the disposal of the appeal by the first respondent. 5. The facts leading to these petitions are, 2nd respondent passed the assessment order on 28.03.2014 as per Annexure -A, almost three years ago. The petitioner before challenging the said assessment order passed by the 2nd respondent by preferring an appeal before the 1st respondent submitted an application before the 2nd respondent requesting not to initiate recovery proceedings for collection of tax pursuant to the assessment order Annexure-A. The 2nd respondent partly allowed the application and stayed the execution of the order at Annexure-A subject to petitioner depositing 50% of the demand indicated in the assessment order Annexure -A. The petitioner aggrieved by the said order of the second respondent challenged

: 5 : the same by preferring a writ petition before this Court in Writ Petition Nos.107813 of 2014 and 108696-108697 of 2014 as per Annexure-D. In the meantime petitioner challenged the assessment order passed by the 2nd respondent by preferring an appeal before the first respondent and hence this Court disposed of the writ petitions holding, since the petitioner has already challenged the assessment order passed by the second respondent by preferring an appeal before the first respondent, he can very well approach the first respondent and seek stay of Annexure-A. Accordingly, the petitioner filed an application in the appeal pending before the first respondent seeking stay for execution and operation of assessment order Annexure-A. The First Appellate Authority rejected the stay application on the ground, when 2nd respondent granted stay for execution of stay order subject to petitioner depositing 50% of the demand indicated in the assessment order Annexure-A he failed to deposit 50% of the demand and therefore stay cannot be granted. Consequently, respondent No.3 has issued demand notice demanding 50% of

: 6 : the demand indicated in the assessment order at Annexure-A. Therefore the request made by the petitioners directing 2nd respondent as not to precipitate the recovery proceedings till consideration of the appeal by the First respondent cannot be granted. 6. According to the petitioner, he has addressed argument on the main appeal itself before the first respondent- First Appellate Authority during the month of November 2016. By now 4 months have elapsed. When the appeal was heard, the First Appellate Authority is expected to dispose of the appeal on merits and in accordance with law. Therefore, justice would be met if the first respondent-First Appellate Authority is directed to dispose of the appeal itself if the appeal has been heard as contended by the learned counsel for the petitioner. Hence, the following order: Writ petitions stand allowed. The first respondent-the First Appellate Authority is hereby directed to dispose of the main appeal itself on merits and in accordance with law as expeditiously

: 7 : as possible in the facts and circumstances of the case at any rate within three months from the date of receipt of a copy of this order. Sd/- JUDGE Rsh & kmv