VINAYAK PRASAD and Others vs ASSISTANT COMMISSIONER OF INCOME TAX and Others

A. P. MISRA, J. :

Heard the learned counsel for the parties.

In view of the facts and circumstances of the case, the present petition is being disposed of finally at the stage of admission as agreed to by the counsel for the parties.

The petitioner seeks mandamus directing the respondent No. 4 not to recover the amount of tax and penalty alongwith interest for the asst. yr. 1989-90 and further directing Tribunal to dispose of his appeal pending before the said authority.

The petitioner being aggrieved by the assessment order, filed an appeal before CIT(A) but the same was also dismissed by means of an order (Annexure-7 to the writ petition). The petitioner, thereafter filed second appeal before the Tribunal on 9th March, 1992. He also moved a stay application on 24th November, 1992 which is Annexure-9 to the writ petition. As per the averments made in the petition, the said appeal and stay application have not yet been disposed of. In the meanwhile a penalty was also imposed under s. 271B and under s. 271(1)(c). The petitioner, thereafter, preferred an appeal against the order imposing penalty before CIT which is pending before the said authority (Annexure-12 to the writ petition). During this pendency, however, a demand has been raised against the petitioner and recovery is being sought and since the aforesaid appeal and stay application have not yet been disposed of, petitioner having no other remedy, has filed the present writ petition.

Looking to the aforesaid facts and circumstances of the case, we direct the Tribunal to dispose of petitioners application for stay dt. 24th November, 1992 (Annexure-9 to the writ petition) unless already disposed of by a speaking order within a period of four weeks from the date of filing of a certified copy of our order before the said authority.

Until disposal of the stay application dt. 24th November, 1992 (Annexure 9 to the writ petition), the recovery proceedings as against the petitioner so far as it relates to the amount sought to be stayed by the said application for the asst. yr. 1989-90 shall remain stayed and will be subject to the order to be passed by the said Tribunal as aforesaid. This is without prejudice of the right of the petitioner if so advised, to seek relief for stay so far as it pertains to penalty, under s. 220(6) of the IT Act. The petitioner will file a certified copy of our order before the said Tribunal within a period of two weeks from today.

With the aforesaid observations, the present petition is finally disposed of.