2019 (4) TMI 1441 - HC - Income Tax

Stay petition - non disposal of stay application and appeal by appellate authority - HELD THAT - The assessee has not co-operated with the assessing officer while the assessment was undertaken and the assessment order passed. According to him, prima facie as things stand at present the order does not suffer from any infirmity and prays for dismissing this writ petition. The counsel, does not object to directing disposal of the stay petition at the earliest; however he insists upon the condition to deposit 20%, and that the petitioner can avail the benefit of the stay and the appeal could also be disposed of expeditiously. Writ prayer is substantially against the inaction of the appellate authority/ the third respondent in disposing of Ext.P7 stay petition and Ext.P2 appeal. ORDER - The third respondent considers and disposes of Ext.P7 stay petition as expeditiously as possible, preferably within two months from the date of receipt of the copy of this judgment. The petitioner is directed to deposit 10% of the amount demanded through Ext.P2 within four weeks from today and files proof of payment before the third respondent to enable the third respondent to consider the stay application.

Summary

Issues:
1. Delay in disposing of Ext.P7 stay petition and Ext.P2 appeal by the third respondent.

Analysis:
The petitioner sought mandamus to direct the third respondent to consider and dispose of Ext.P2 appeal and Ext.P7 stay petition promptly. The counsel argued that the appeal was filed within the limitation period, with prima facie grounds for stay of the assessment order. Emphasizing the financial loss and irreparable injury the petitioner would suffer if recovery proceeded, the counsel urged for immediate disposal of the stay petition and appeal within a reasonable timeframe.

The Standing Counsel for the respondents contended that the assessing officer had required the petitioner to deposit 20% to proceed with the appeal. Allegations were made regarding the lack of cooperation from the assessee during the assessment process. The counsel maintained that the assessment order was not flawed prima facie and requested the dismissal of the writ petition. However, he did not oppose the disposal of the stay petition promptly, subject to the condition of depositing 20% as directed.

The court, after reviewing the assessment order and the conditions imposed, issued the following directives: a) The third respondent must promptly consider and dispose of Ext.P7 stay petition within two months. b) The petitioner was instructed to deposit 10% of the demanded amount through Ext.P2 within four weeks and provide proof of payment for the third respondent's consideration of the stay application. c) Ext.P2 appeal should also be expeditiously addressed, subject to compliance with legal conditions. d) A stay of recovery pursuant to Ext.P1 assessment order was granted until the disposal of the appeal.