DAYA SHANKER Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) BY this writ petition proceedings for recovery of a certain amount as Income Tax together with interest thereon and penalty are sought to be quashed. It stands admitted to the parties that the amount payable by the petitioner was Rs. 1,63,036 as stated in annexure-CA-1 to the counter affidavit of N. P. Khare filed in the present writ petition. As regards the first two items of the said annexe which represent tax and penalty for the year 1974-75 the case of the petitioner in the writ petition is that appeals against the orders of assessment and imposition of penalty are pending before the Tribunal and an application was made by the petitioner before the ITO for staying the recovery of the said amounts as contemplated by sub-s. (6) of S. 220 of the IT Act, 1961 (hereinafter referred to as the Act) but the ITO has not passed any order thereafter. A supplementary affidavit since thereafter has been filed on behalf of the petitioner on 28th March, 1984. Annexure-SA 5 to that supplementary affidavit is a latter dt. 24th March, 1984 of the ITO Central Circle, Gorakhpur, addressed to the petitioner. It indicates that the application made by petitioner for stay has been dismissed. It has been stated in this order that it is not possible to grant stay in respect of these demands. Now since the application made by the petitioner for stay has been dismissed by the ITO, the petitioner can file a revision against that order under S. 264 of the IT Act. He can also make an application for stay in the said revision. It may also be open to the petitioner to made an application before the Tribunal where the appeals are pending for staying the recovery of the aforesaid amounts. We are, therefore, not inclined to entertain this writ petition insofar as the recovery of these amount is concerned.

(2.) AS regards the third items mentioned in Annexure CA1 namely the sum of 797 for the year 1978 the petitioner's case is that the said amount has already been deposited by him. In regard to the last two items which telate to the asst. yrs. 1976-77 and 1980-81 the case of the petitioner is that appeals were pending when the writ petition was filed but they have now been allowed and the assessment orders have been set aside. If that is so the proper course for the petitioner is to bring the aforesaid fact to the notice of the TRO for action as contemplated by sub-ss. (2) and (4) of s. 225 of the Act. The provisions of these sections are mandatory and we are confident that on the facets mentioned above being brought to his notice the TRO shall pass necessary orders as contemplated by these sub-section and refrain from realising the aforesaid amounts..