2011 (3) TMI 1118 - HC - Income Tax

Stay application - writ petition - Held that - It is tangible that the appeal has already been pending before the Commissioner Income-tax appeals against the order of the Assessing Officer - The Hon ble Apex Court has also given a word caution in matters of taxes cess fees etc. that the recovery of taxes should not be stayed - Hence in view of judgment rendered in the case of United Bank of India v. Satyawati Tondon 2010 (7) TMI 829 - SUPREME COURT the Hon ble Apex Court has expected from the High Court not to ordinarily entertain a petition under Article 226 of the Constitution if an efficacious remedy is available to the aggrieved person. the writ petition filed by the petitioner being not maintainable deserves to be dismissed and the same stands dismissed accordingly.

Summary

Issues:
1. Quashing of assessment order and stay on demand pending appeal
2. Excessive demand raised by the Assessing Officer
3. Maintainability of the writ petition under Article 226 of the Constitution
4. Direction to the Commissioner of Income-tax (Appeals) to decide the appeal

Analysis:
1. The petitioner sought relief to quash the assessment order and stay the demand pending appeal. The Deputy Commissioner of Income-tax assessed the petitioner's income for the year 2007-08 and raised a demand of Rs. 1,38,33,389. The petitioner filed an appeal before the Commissioner (Appeals) which was pending for decision.

2. The Assessing Officer passed an order stating that the pendency of appeal proceedings does not bar recovery, giving a deadline for depositing 50% of the demand. The petitioner's counsel argued that the demand was excessive and should be stayed. Alternatively, they requested the early disposal of the appeal.

3. The High Court referred to a judgment by the Apex Court, emphasizing that a writ petition under Article 226 should not be entertained if an efficacious remedy is available. The appeal was already pending before the Commissioner of Income-tax appeals, and the Apex Court had cautioned against staying tax recovery.

4. Due to the pending appeal, the High Court found the writ petition not maintainable and dismissed it. However, considering the alternate prayer, the Commissioner of Income-tax (Appeals) was directed to decide the appeal within three months. The writ petition was disposed of accordingly.