2020 (4) TMI 549 - HC - Income Tax

Stay of demand - Submission of additional memorandum of grounds in support of their Exts.P4 and P5 - HELD THAT - The petitioner may file an additional memorandum of grounds in support of Ext.P-4 appeal as well as Ext.P-5 stay application before the 2nd respondent appellate authority, without much delay preferably within a period of 10 days from the date notified for receiving a certified copy of this judgment. In case such additional memorandum of grounds is duly filed by the petitioner as aforestated, then the 2nd respondent appellate authority shall treat those additional grounds as part and continuation of the appeal and stay application already filed. Thereafter, the 2nd respondent after affording reasonable opportunity of being heard to the petitioner on the matters raised in Ext.P-5 stay application, may pass orders on the stay application without much delay, preferably within a period of 6 weeks from the date of filing of the aforestated additional memorandum of grounds. It is only for the purpose of preservation of the subject matter of the lis, it is ordered that until orders are passed on Ext.P-5 stay application as aforedirected, further coercive steps for enforcement of the impugned order may be kept in abeyance. It is made clear that the aforesaid directions have been issued by this Court only for the purpose of preservation of the subject matter of the lis.

Summary

Issues:
1. Appeal against order under Sec.271 B for assessment year 2015-16.
2. Defects in appeal and stay petition filed by petitioner.
3. Dismissal of appeal due to defects not being cured.
4. Writ Petition seeking quashing of dismissal order and stay on recovery proceedings.

Analysis:

Issue 1: Appeal against order under Sec.271 B for assessment year 2015-16
The petitioner, a primary agricultural credit society, filed an appeal against Ext.P-1 order issued under Sec.271 B for the assessment year 2015-16. The petitioner also filed a stay petition while awaiting orders on the appeal.

Issue 2: Defects in appeal and stay petition filed by petitioner
The petitioner was informed via Ext.P-2 communication that the appeals were defective and needed to be cured within 15 days. Despite curing the defects and filing Ext.P-4 appeal after 7 days of the stipulated time, the appeal was dismissed by the 2nd respondent for not curing the defects.

Issue 3: Dismissal of appeal due to defects not being cured
The dismissal of the appeal by the 2nd respondent was challenged in the Writ Petition (Civil) with prayers to quash the dismissal order (Ext.P-6) and to direct the 1st respondent not to proceed with recovery until the appeal and stay petition were disposed of.

Issue 4: Writ Petition seeking quashing of dismissal order and stay on recovery proceedings
The petitioner relied on a previous judgment (Ext.P-7) where the Court directed that dismissing appeals on technical grounds of limitation would not serve the interest of justice. The Court ordered the petitioner to file an additional memorandum of grounds in support of the appeal and stay application, which would be considered by the 2nd respondent appellate authority.

In conclusion, the Court directed the petitioner to file additional grounds, and if done promptly, the 2nd respondent should consider them in deciding on the appeal and stay application. Coercive steps for enforcing the order were to be kept in abeyance until the stay application was decided. The Court clarified that its directions were for the preservation of the subject matter and did not imply an opinion on the merits of the case, which fell under the jurisdiction of the 2nd respondent appellate authority.