ABHAYKUMAR S/O BHARMAGOUDA PATIL vs. THE UNION OF INDIA

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 19TH DAY OF JANUARY 2015 BEFORE THE HON’BLE MR.JUSTICE A.N. VENUGOPALA GOWDA Writ Petition Nos.107813/2014 & 108696-108697/2014 (T-IT) Between: ABHAYKUMAR S/O BHARMAGOUDA PATIL AGE: 48 YEARS, OCC: FORMER M L A R/O. 24 MALIMI BASAVAN GALLI SHAHAPUR, BELGAUM, BELGAUM-590003. ... PETITIONER (BY SRI. SACHIN S MAGADUM, ADV.) AND 1. THE UNION OF INDIA, PRINCIPAL SECRETARY, MINISTER OF FINANCE SOUTH BLOCK, NEW DELHI. 2. THE COMMISSIONER OF INCOME TAX APPEALS BELGAUM, TQ. BELGAUM, DIST: BELAGUM –590001. 3. ASSISTANT COMMISSIONER OF INCOME TAX BELGAUM CIRCLE I, OPP. DIST HOSPITAL, DR B R AMBEDKAR ROAD, BELGAUM, TQ: BELGAUM DIST: BELGAUM –590001. ...RESPONDENTS (BY SRI. Y V RAVIRAJ, ADV. FOR R2 & R3, (R1 DELETED V.O. DTD. 14.1.2015)

: 2 : THESE PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 30.07.2014 PASSED BY 3RD RESPONDENT VIDE ANNEXURE-C. THESE PETITIONS COMING ON FOR PRELIMINRY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Assessment Order, as at Annexure-A, having been questioned in an appeal before the 2nd respondent and an application for stay of demand for the Assessment Orders for 2009-2010, 2010-2011 and 2011-12 having been rejected vide Annexure-B and a subsequent communication having been issued by respondent No.3- Assessing Authority, these writ petitions were filed, to quash the communication as at Annexure-C, whereby, the petitioner was directed to remit Rs.1,97,74,040/- being 50% of the demand, on or before 11.08.2014 and produce a copy of the challan for the office record. The said communication was issued in pursuance of the power vested with the Assessing Authority under sub-section (6) of Section 220 of the Income Tax Act, 1961.

: 3 : 2. Shri. Sachin S.Magadum, learned advocate, submitted that in view of the clarification of the legal position in the judgment dated 21.04.2011 passed in W.A. No.3397/2011 holding that the Appellate Authority has power to grant stay even in the absence of statutory provisions, the petitioner may be permitted to withdraw these writ petitions and approach the First Appellate Authority, i.e., the 2nd respondent herein, before whom the Assessment Order as at Annexure-A was questioned. Submission of the learned counsel is recorded. 3. In the case of Jagadish N.Hinduja vs. Commissioner of income Tax, in W.A. No.3397/2011 decided on 21.04.2011, it was made clear, that the view of the First Appellate Authority that what is preferred is a statutory appeal and the statutory provision did not expressly confer the power to grant stay to the Appellate Authority, and therefore the authority has no power to grant stay, is erroneous and the position was clarified as follows: “ When a statute provides a right of appeal and the said statute do not expressly provide a

: 4 : power on the Appellate Authority to grant an order of stay, such Appellate Authority has the inherent power to grant stay in the absence of statutory provision. That is precisely what has been held in the Apex Court’s judgment.” Since the legal position has stood clarified, permitting the petitioner to approach the First Appellate Authority, i.e., the 2nd respondent herein, these writ petitions are disposed off as withdrawn. All the contentions are left open. No costs. SD/- JUDGE Kms