PAUL MATHEWS AND COMPANY Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) The petitioner is a firm of transport contractors. It is an assessee borne on the files of the 1st respondent Income Tax Officer, A-ward, Alwaye. It was granted registration under S.185 of the Income Tax Act, 1961 for the assessment year 1971-72. This benefit continued for the years 1972-73 to 1976-77 as the assessee filed declarations in form No. 12. Subsequently, the 1st respondent passed an order cancelling the registration for the above years. The petitioner filed appeals before the Commissioner of Income Tax (Appeals), Ernakulam. The appeals were dismissed. The petitioner filed second appeals. Pending the appeals before the Appellate Tribunal, on motion by the petitioner, the appellate Tribunal passed a common order of stay of collection of tax as per the revised assessment orders (Ext. P-1, dated 27th February 1982). By Ext. P-1, stay of recovery proceedings, was ordered subject to certain conditions. Finally, the Appellate Tribunal dismissed the appeals. On motion made by the petitioner, the Appellate Tribunal referred certain questions of law for the opinion of this court, evidenced by Ext. P-2 order, dated 12th November, 1982. After the dismissal of the appeals by the Appellate Tribunal recovery proceedings were taken by the Revenue. The petitioner prayed for stay of recovery proceedings as evidenced by Ext. P-3, petition dated Nil. According to the petitioner, the questions of law referred by the Appellate Tribunal as per Ext. P-2, were pending for consideration in the High Court (R.A. No. 350 to 356 corresponding to ITR 464 to 470 of 1982) and till the decision is rendered by the High Court in the referred cases, and thereafter the Appellate Tribunal passes an order as envisaged by S.260(1) of the Income Tax Act, it cannot be said that the appeals have been "finally disposed of" by the Tribunal. Till such orders are passed by the Appellate Tribunal, the appeals filed before the Appellate Tribunal are pending, In this view, since the appeals are still pending, the stay ordered by the Appellate Tribunal as per Ext. P1 is still in force (even during pendency of Referred cases in this court) and so recovery proceedings are incompetent and without jurisdiction. The respondents have not disposed of Ext. P-3 petition and recovery proceedings are being pursued. So, this Original Petition was necessitated, assailing the recovery proceedings, taken by the Revenue. In the O. P. the petitioner has prayed for the issue of a writ of mandamus directing the respondents not to pursue the recovery proceedings for the recovery of the tax levied on the petitioner while giving effect to the order of the Commissioner of Income Tax (Appeals) pending "final disposal of the appeals by the Tribunal" conformably to the judgment of the High Court in ITR No. 464 to 470 of 1982 and for other reliefs.

(2.) Counsel for the petitioner contended that when once references are pending in this court, the appeals filed before the Tribunal are not "finally disposed of". It is only after a decision is rendered in the referred cases by this Court under S.259 read with S.260 of the Income Tax Act and as a equal thereto the Appellate Tribunal also passes "final orders" as contemplated by S.260(1) of the Act the appeals are "finally disposed of". Till such final disposal of the appeals by the Appellate Tribunal, the appeals are or should be deemed to be pending. On these premises, it is contended by petitioner's counsel, that the order of stay granted by the Appellate Tribunal, as evidenced by Ext. P-1, will be operative and effective till the consequential orders are passed by the Appellate Tribunal under S.260(1) of the Act. Any recovery proceedings during the pendency of the referred cases in this court is incompetent. Counsel relied on certain passages from the decisions reported in Income Tax Appellate Tribunal v. Cambatta and Co. Ltd. 29 ITR 118 (Bombay), Esthuri Aswathiah v. Commissioner of Income Tax, Mysore 66 ITR 478 (SC), Commissioner of Income Tax v. Jubilee Mills Ltd. 68 ITR 630 (SC), East India Corporation Ltd. v. Commissioner of Income Tax 99 ITR 287 (Madras) in support of the above submissions and asserted that these decisions establish the proposition that only when the appellate Tribunal passes the consequential order under S.260(1) of the Act conformably with the decision of this Court rendered under S.259 and S.260 of the Act, the final decision in the appeal is rendered and in that view of the matter, Ext. P-1 order of stay granted by the Appellate Tribunal will be operative and alive till such an order is passed.

(3.) The argument of the counsel is ingenious. But, in my opinion, the true import of the relevant sections of the Income Tax Act and the decisions cited at the Bar, were not understood, in a proper perspective. The following sections, which are relevant, may be usefully quoted: