9911796707
TMI Blog2013 (2) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed tax and penalty. His action in recovering the amounts pending disposal of the revision petitions before the fourth respondent has made the said revisions infructuous. We strongly deprecate this conduct of the second respondent and hold the same to be arbitrary and high-handed. Set aside the impugned garnishee notice dated December 7, 2012, issued by the second respondent; direct the second respondent to immediately remit the sum of ₹ 25,86,668 to the bank account of the petitioner in the fifth respondent-bank; set aside the non-speaking orders dated May 22, 2012 and June 7, 2012 passed by the third respondent rejecting the stay applications filed by the petitioner in the appeals challenging the orders of assessments and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner for the period April 1, 2008 to September 30, 2011. A show-cause notice in form 305A dated December 26, 2011 was issued by the second respondent proposing to levy tax on allegedly under-declared turnover for the above period. Subsequently assessment order was passed on January 23, 2012 and an order dated March 13, 2012 levying penalty was also passed on the ground that the petitioner intentionally under-declared tax. Aggrieved by the orders of assessment and penalty, the petitioner filed appeals before the third respondent. It also filed applications seeking stay of collection of balance tax and penalty. But the stay applications were dismissed by the third respondent by separate non-speaking orders dated May 22, 2012 and June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the stay petitions in the appeals without passing a speaking order; (b) not disposing of the revision petition filed on June 23, 2012 till date; (c) issuing garnishee proceedings dated December 7, 2012 and recovering disputed demand and penalty on December 8, 2012 rendering the revision proceedings infructuous; are arbitrary and illegal; consequently the impugned garnishee proceedings dated December 7, 2012 be set aside; and the amounts deducted from the petitioner's bank account be directed to be remitted back to the petitioner's credit in the said bank account. In the counter-affidavit, the second respondent sought to justify the issuance of garnishee order dated December 7, 2012 on the ground that the petitioner was liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995] 98 STC 386 (AP); 21 APSTJ 98, is that if recoveries of disputed tax or penalty are made where stay application is pending before the appellate authorities, the appeal itself would be rendered infructuous and that the assessee who is aggrieved by an order of assessment has been given a statutory right of appeal which cannot be rendered infructuous by being forced to pay the disputed tax or penalty pending the appeal. We see no reason why the said principle cannot be extended to a situation where the first appellate authority rejects the stay application and a revision is preferred by the assessee before the revisional authority seeking stay of the disputed tax and penalty. We see no statutory basis for the circular issued by the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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