2013 (4) TMI 15 - HC - Income Tax

Request for stay of demand till the expiry of the time limit for filing an appeal declined - Held that - In terms of order passed by the Division Bench of this Court in UTI Mutual Fund Versus Income Tax Officer 19(3)(2) & ors. 2012 (3) TMI 333 - BOMBAY HIGH COURT the fixed deposits to the tune of Rs. 20.00 crores were not encashed during the pendency of the appeal before the Commissioner of Income Tax (Appeals). After the appeal was decided, the embargo on the revenue to encash the fixed deposits came to an end and consequently the revenue was within its jurisdiction to encash the guarantee of Rs. 20.00 crores. Thus it is not find that the assessee is entitled to stay of recovery proceedings during the limitation period for the filing of the appeal. There is no deemed stay of liability after the enforceable order is passed by an authority under the statute. Reference may be made to Collector of Customs, Bombay Vs. Krishna Sales (P) Ltd. 1993 (9) TMI 124 - SUPREME COURT OF INDIA In an another judgment, the Court held that pending appeal, it is open to the Decree holder to execute decree subject to the right of restitution in Inderchand Jain v. Motilal, (2009 (7) TMI 1029 - SUPREME). The court only at the time of passing a judgment and decree reversing that of the appellate court should take into consideration the subsequent events, but, by no stretch of imagination, can refuse to do so despite arriving at the findings that the plaintiff would not be entitled to grant of a decree. In view of the above, mere fact that the petitioner had time limit to file an appeal does not bar the revenue to execute the order passed. No merit in the present petition.

Summary

Issues:
Challenge to communication declining stay of demand till the appeal filing time limit expiry.

Analysis:
1. The petitioner sought a stay of demand till the appeal filing time limit expired, referencing a Bombay High Court order for guidelines. The petitioner had previously obtained an order preventing encashment of fixed deposits until appeal decision. After the appeal was decided, the revenue was allowed to encash the deposits. The court noted there is no automatic stay of liability after an enforceable order is passed, citing a Supreme Court case regarding release of goods pending appeal.

2. The court referenced a Supreme Court judgment stating that the mere filing of an appeal does not automatically stay the execution of a decree. It acknowledged that during the appeal process, the decree-holder can execute the decree, subject to restitution if the appeal is successful. The court emphasized that the execution of the decree during the appeal is subject to the property being restored if the appeal is allowed.

3. The court concluded that the revenue was not barred from executing the order despite the petitioner having time to file an appeal. It found no merit in the petitioner's argument for a stay of recovery proceedings during the appeal filing limitation period. As a result, the petition was dismissed.