Bimal Paul vs Chief Commissioner of Income Tax and Others

Adarsh Kumar Goel, C.J.—This petition seeks quashing of order passed by the ITO, Silchar rejecting the application for stay of recovery of the tax assessed vide assessment order dt. 12th March, 2013, till disposal of the appeal pending against the said assessment order. Grievance in the writ petition is that while statutory appeal and stay application were not being taken up by the appellate authority i.e. CIT(A) Shillong, coercive steps were being taken for realization of the assessed tax. This may render the remedy of preferring statutory appeal infructuous. Reliance has been placed on the instruction of the CBDT dt. 21st Aug., 1969 issued with reference to the judgment of the Rajasthan High Court in the case of HIS LATE HIGHNESS MAHARANA SHRI BHAGWAT SINGHJI OF MEWAR Vs. INCOME TAX APPELLATE TRIBUNAL and Others, being SB Civil Writ Petn. No. 1936 of 1996 to the effect that during pendency of the appeal, the amount should not be recovered till disposal of the stay application so as not to render the appeal of the assessee infructuous.

On the last date, we asked learned standing counsel to take instructions in the matter.

We have been informed that the stay application has since been decided vide order dt. 26th July, 2013. Stay has been declined but the assessee has been permitted to pay the assessed tax in installments. The appellate authority held that the assessee could not make out a case for absolute stay of the entire outstanding amount. The assessee has not truthfully disclosed the existence of the bank accounts and not taken into account the profit element attributable to the transactions recorded in the bank accounts.

The petitioner has filed Misc. Case No. 2610 of 2013 seeking stay of the order of the appellate authority dt. 26th July, 2013.

We have heard learned counsel for the parties.

The order of assessment discloses that the assessee was maintaining three bank accounts which were not disclosed in the return of his income. Total deposits in the said bank accounts during the financial year are about Rs. 5.47 crores. The explanation of the assessee was duly considered and the assessment was made. The appellate authority has duly applied its mind to the stay application and found no prima facie case. It was observed that it was not a case where income was enhanced merely on guesswork.

Since no patent illegality or irregularity has been pointed out, no case is made out to interfere with the order rejecting the stay application.

Learned counsel for the petitioner submitted that in the order rejecting the stay application, merits have been gone into, which vitiates the said order.

We are unable to accept this submission. It is inevitable, while deciding the stay application, to consider prima facie merits and such consideration is only for the purpose of deciding whether a case for interim stay was made out. We, thus, do not find any ground to interfere. The petition is dismissed.