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Judgment
Kalyan Jyoti Sengupta, C.J.—Learned counsel for the Revenue submits that he does not want to file any counter affidavit in these matters. We admit the writ petitions and entertain the same to the extent of challenge made as against Sl. Nos. 6 and 9 of the Notification dated 1-1-2013. Sl. No. 6 of the Notification provides as follows:
Sl. No. 9 of the Notification provides as follows:
It appears from the aforesaid provisions that if no stay order is granted within 30 days from the date of preferring the appeal, the recovery proceedings have to be initiated irrespective of pendency of the appeal or pendency of the application for stay.
We find substance in the argument of the learned counsel for the petitioners that there may be various situations and circumstances when the Tribunal or the appellate Authority is unable to dispose of the stay applications within 30 days, for which, the appellant might not be at fault. In such situation, if the aforesaid notification to the extent as above is allowed to be operative, and consequently, recovery proceedings is initiated pending disposal of the stay application by the Tribunal or appellate authority it will result in rendering the appeal and application being infructuous.
We are of the view that the aforesaid notification indirectly interferes with the administration of justice holding out a threat to recover if stay application is kept pending for hearing beyond 30 days. The notification has been issued aiming at to put pressure indirectly upon appellate authority or Tribunal as the case may be, though the same are not binding upon appellate fora. A provision of this nature will work as arbitrary instrument against assessee litigants who are bona fide one. We cannot overlook the fact that some unscrupulous litigants may take advantage of the pendency of the stay application, so much so, the Revenue cannot proceed against them for a long time. Therefore, some balance should be struck so that both the parties will not be prejudiced. We accordingly read down the same as follows:
When the application for stay is remaining pending for decision for more than 30 days, for which the assessee/appellant is not at fault, on account of failure of Tribunal or appellate authority for any reason, the above notification will not be applicable simply for the maxim, actus curiae neminem gravabit (acts of court does not prejudice any one).
In view of the aforesaid circumstances, we dispose of the writ petitions, reading down as above. In view of this order, there shall not be any recovery proceedings till such decision is taken by the learned Tribunal.
The writ petitions are accordingly disposed of. Consequently, the miscellaneous applications, if any pending, shall stand disposed of. No costs.