Bombay High Court
Anil Jeetmal Kothari vs The Assistant Commissioner Of Income ... on 10 July, 2023
Author: K.R. Shriram
Bench: K.R. Shriram
Digitally signed
MEERA by MEERA
MAHESH
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MAHESH JADHAV
JADHAV Date:
2023.07.11
17:34:16 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.4156 OF 2022
Anil Jeetmal Kothari ....Petitioner
V/s.
The Assistant Commissioner of Income Tax
Central Circles 5(1)(1) Mumbai & Ors ...Respondents
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Mr. Mandar Vaidya for Petitioner. Mr. Suresh Kumar for Respondents.
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CORAM : K.R. SHRIRAM & FIRDOSH. P. POONIWALLA, JJ DATED : 10th JULY 2023 P.C. :
1 The assessment order dated 31st May 2023 having been passed on the teeth of a stay order being in force is non-est. We are not inclined to accept the explanation of Mr. Suresh Kumar that the officer is not aware about the legal position. The law in this regard is clear as laid down in Govinda Bhagoji Kamable & Ors. Vs. Sadu Bapu Kamable & Ors. 1 where paragraph 12 reads as under:
"12. In view of this controversy, the question is whether the possession should be restored to the Appellants. Before I consider this question, it is necessary to consider the main controversy whether the stay granted by this Court was operative only till the returnable date i.e. 9th December 2002, or it was to continue till disposal of the Civil Application or till further orders. The first part of the order records that the notice is issued to the Respondents and 9th December 2002 is fixed as the returnable date of the notice. From the plain reading of the order, it is very clear that the order of ad-interim stay was not limited to any particular date. The first part of the order directs
1. 2005(1) Mh.L.J. 651 Meera Jadhav ::: Uploaded on - 11/07/2023 ::: Downloaded on - 11/07/2023 19:49:17 ::: 2/3 402-4156-22.doc issuance of the notice to Respondents and it is ordered to be made returnable on a particular date. It is further stated that in the meanwhile ad-interim exparte relief is granted. It is crystal clear from the order that the intention of this Court was to issue notice and to grant stay in the meanwhile. The phrase "in the meanwhile" is used in the order granting stay. The dictionary meaning of the word meanwhile is "till happening of a particular even" or "until something expected happens". When the stay was to be operative in the meanwhile, it was to operate upto happening of a particular event. The said event was hearing of the application after service of notice to the Respondents. Whenever this Court intends to grant ad-interim relief limited to a particular date, it is always mentioned in the order very specifically that the ad-interim relief will be operative till a particular date. When this Court issued notice and granted ad-interim relief in the meanwhile, it was obviously intended that the ad-interim relief will operate till the application was heard by this Court after service of notice. When this Court makes notice returnable on a particular date, it cannot be argued that the date mentioned in the notice is the date on which the application will be positively heard. The returnable date mentioned in the order is the returnable date fixed for the notice. It is a date fixed for appearance of the parties. It is not necessary that on the returnable date fixed by this Court, the case appears on the Board. When this Court issued notice to the Respondents and granted ad-interim relief "in the meanwhile", is obvious that the ad-interim relief was to operate till the Court heard the parties on the basis of the notice issued or till order of stay was specifically vacated by this Court. Whenever, the Court intends that the ad-interim relief will operate till the returnable date, it is specifically mentioned in the order that ad-interim relief will operate upto a specific date or till the returnable date of notice. When ad- interim relief is granted "in the meanwhile" after issuance of notice to the Contesting Party the said relief continues to operate until the event of hearing of the Application. The order cannot be read to mean that the interim relief is operative only till the returnable date of the notice."
The order of interim stay was not limited to any particular date. The ad-interim stay granted by this court was to operate till disposal of the petition or till further orders. Respondent was aware of this. 2 In view thereof, the assessment order dated 31 st May 2023 is non-est and is hereby quashed and set aside. 3 Petition on the other issue be listed for admission on 9 th October 2023. There shall be ad-interim stay till 31st October 2023.
Meera Jadhav
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4 Affidavit in reply to be filed and copy served by 19 th August 2023.
Rejoinder, if any, to be filed and copy served by 4th September 2023. (FIRDOSH P POONIWALLA, J.) (K.R. SHRIRAM, J.) Meera Jadhav ::: Uploaded on - 11/07/2023 ::: Downloaded on - 11/07/2023 19:49:17 :::