K C JOY Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) THERE is no cause of action for the petitioner to approach this court at this stage. The petitioner is one of those on whom the order of assessment, exhibit P-1, has been passed. It is said that a portion of the tax so assessed has been paid by the other persons on whom also the order, exhibit P-1, has been passed. The petitioner is now being proceeded against for the balance due as per exhibit P-1 which includes interest under Sections 139(8) and 217 of the Income-tax Act, 1961. When such proceedings for recovery of the amount were initiated, the petitioner made a request to the Tax Recovery Officer to drop the proceedings against him and to proceed against the other members of the association. Whether such a prayer is tenable or not is a matter on which I need not express any opinion now as the matter arises for consideration before the Tax Recovery Officer. The petitioner has also made an application, exhibit P-4, before the Commissioner of Income-tax for waiver of the interest. What the petitioner seeks in this writ petition is stay of the recovery proceedings initiated against him for the balance amount due under the order of assessment, exhibit P-1, pending disposal of the application, exhibit P-4, by the Commissioner. I am really surprised at such a procedure when the petitioner has not even moved the Commissioner for stay of the recovery proceedings for any amount including the interest pending disposal of exhibit P-4. What he now seeks is the issue of a writ of mandamus directing the respondents to stop the recovery proceedings pending the application, exhibit P-4, before the Commissioner. The pre-requisite for the issue of a writ of mandamus is a demand and refusal. THERE is absolutely no such demand for stay of the recovery proceedings pending exhibit P-4 made before the Commissioner. What the petitioner wants this court to do is to pass an interlocutory order when the substantive motion is pending before the Commissioner of Income-tax. In other words, this court should deal with the interlocutory matters when the main proceeding is pending before the Commissioner, without even a formal motion before that authority. A curious procedure indeed, though I find such applications are proliferating. The Commissioner of Income-tax is the competent authority to whom the request for stay should have been made pending exhibit P-4. The petitioner has not chosen to do so. In the absence of a demand, much less refusal by the Commissioner of Income-tax to pass an interim order pending exhibit P-4, the petitioner has no cause of action to approach this court with a prayer to direct proceedings for recovery to be stayed pending exhibit P-4.

(2.) THE original petition is misconceived and is absolutely bereft of any merit. Dismissed.