IT: Commissioner had no jurisdiction to pass an order on application seeking stay of order impugned in appeal pending before Commissioner (Appeals)
■■■
[2013] 39 taxmann.com 1 (Karnataka)
HIGH COURT OF KARNATAKA
Devaraj Pande
v.
Income Tax Authority*
RAM MOHAN REDDY, J.
WRIT PETITION NO. 41383 OF 2012 (T-IT)
MARCH 6, 2013
Section 251 of the Income-tax Act, 1961 - Commissioner (Appeals) - Powers of [Power to grant stay] - Assessee filed a writ petition seeking stay of order impugned in appeal pending before Commissioner (Appeals) - High Court directed assessee to file an application before Commissioner before whom appeal was pending and seek an appropriate interim order - Assessee stated that it did not file an application because an application had already been presented before Commissioner who ought to have forwarded said application to Commissioner (Appeals) - Commissioner instead of forwarding said application to Commissioner (Appeals), himself disposed of application allowing partial stay of order impugned in appeal - Whether on facts, Commissioner had no jurisdiction to pass an order on application for stay of order impugned in appeal pending before Commissioner (Appeals), and, therefore, impugned order of Commissioner was to be set aside with a direction to forward application in question to appellate authority for decision making - Held, yes [Paras 5 & 6] [In favour of assessee]
Krishna S. Vyas for the Petitioner. K.V. Aravind for the Respondent.
ORDER
1. Petitioner has assailed the order dated 03.07.2012 Annexure 'A' of the second respondent partially allowing the application for stay of the order impugned in the appeal pending before the Commissioner for Income Tax (Appeals).
2. According to the learned counsel for the petitioner, W.P. No.12399/2012 filed by the petitioner was disposed of by order dated 19th April 2012 Annexure 'G' permitting the petitioner to approach the Commissioner of Income Tax before whom the appeal was pending and to seek an appropriate interim order and if an application is filed within a week therefrom, the Commissioner was directed to consider the same in accordance with law, uninfluenced by the decision taken by the Additional Commissioner of Income Tax on the administrative side.
3. Petitioner it is stated, did not file an application because an application had already been presented before the Commissioner of Income Tax, Bangalore-IV, who ought to have forwarded the said application to the Commissioner of Income Tax (Appeals) and having not done so, the order Annexure 'A' is one without jurisdiction.
4. Learned counsel for the respondents submits that it was for the petitioner to have filed an application, afresh, before the Commissioner of Income Tax (Appeals), where the appeal was pending and ought to have invited an order on the said application and having not done so, the Commissioner of Income Tax, Bangalore-IV was justified in passing the order Annexure 'A on the said application.
5. Having heard the learned counsel for the parties, perused the pleadings and examined the communication Annexure 'A' Undoubtedly, the Commissioner for Income Tax, Bangalore-IV had no jurisdiction to pass an order on the application for stay of the order impugned in the appeal pending before the Commissioner of Income Tax (Appeals), in the light of the order in W.P. No.12399/2012 dated 19.04.2012 Annexure 'G' The Commissioner of Income Tax, Bangalore-IV was therefore required to forward the application for stay to the Commissioner of Income Tax (Appeals) for decision making. It is true that the petitioner did not make a fresh application in the pending appeal before the appellate authority, but that does not mean to say that the Commissioner of Income Tax, Bangalore-IV could exercise a jurisdiction vested in the appellate authority. It is in that context, the Commissioner of Income Tax ought to have forwarded the application to the appellate authority for decision making.
6. Suffice it to state that the order Annexure 'A' is one without jurisdiction.
In the result, petition is allowed. The order dated 03.07.2012 Annexure 'A' of the Commissioner of Income Tax, Bangalore-IV is quashed. The said officer is directed to forward the application for stay to the appellate authority for decision making, who in turn, is directed to extend an opportunity of hearing to the petitioner and pass orders on the application for stay within a week from today in accordance with law.
SUNILRegards
Prarthana Jalan
__._,_.___
No comments:
Post a Comment