2010 (11) TMI 65 - HC - Income Tax

Petitioner has filed an appeal which is pending adjudication - liberty to him to move an application for interim relief against recovery proceedings before the Appellate Authority - Held that - In case, the application is filed within the aforesaid period the recovery proceedings shall remain stayed till disposal of the stay application - It will also be open to the Appellate Authority to decide the appeal at an early date and to pass any interim order during pendency of appeal - petition is accordingly disposed of - In case the application is not filed within the aforesaid period of seven days, the benefit of this order would not be available to the petitioner

Summary

Issues:
1. Stay application not moved before Appellate Authority.
2. Rejection of application before Assessing Officer.
3. Petitioner seeking stay on recovery proceedings during pendency of appeal.
4. Validity of order passed by Assessing Authority.
5. Appropriateness of writ petition for obtaining interim order against recovery.
6. Liberty granted to move application for interim relief before Appellate Authority.
7. Timeline for considering the stay application and disposal of appeal.
8. Consequences of not filing the application within the specified period.

Analysis:
1. The petitioner did not file a stay application before the Appellate Authority, although an application was submitted before the Assessing Officer, which was rejected. The appeal filed by the petitioner is still pending. Counsel for the petitioner argued for a stay on recovery proceedings, citing the non-speaking nature of the order by the Assessing Authority.

2. The revenue representative highlighted that the petitioner can still apply for a stay before the Appellate Authority, emphasizing that a writ petition is not the appropriate remedy without a stay application in the appeal. The Court concurred that a writ petition is generally not entertained solely for obtaining an interim order against recovery proceedings.

3. Acknowledging the pending appeal, the Court granted the petitioner the liberty to file an application for interim relief against recovery proceedings before the Appellate Authority within seven days. If the application is submitted within this timeframe, the Appellate Authority must promptly consider it, ideally within two weeks. The Court ordered that if the application is filed within the stipulated period, the recovery proceedings will remain stayed until the stay application is disposed of.

4. The Court also permitted the Appellate Authority to decide on the appeal promptly and issue any interim orders during its pendency. The writ petition was disposed of accordingly, with the caveat that failing to file the application within the specified seven-day period would result in the petitioner not benefiting from the order.