Madhya Pradesh High Court
M/S Acc Ltd. (Kymore Cement Works) vs Additional Commissioner Of Income-Tax ... on 7 April, 2011
W.P. No.6032/2011
07.04.2011:
Shri H.S. Shrivastava, Sr. Counsel with Shri Abhijeet
Shrivastava, Counsel for the petitioner.
Shri Sanjay Lal, Counsel for respondents.
Facts of the case are that against an assessment
order passed by respondent no.2, Annexure P-1 dated 14.2.2011 for the assessment year 2007-08, the petitioner has preferred an appeal Annexure P-2 before respondent no.3 on 3.3.2011. Alongwith the appeal, petitioner has filed an application seeking interim stay of the order Annexure P-1. The aforesaid application for stay has not been considered by respondent no.3 till date.
In the meantime, petitioner has also approached the Additional Commissioner Income Tax (TDS), Bhopal, who by order Annexure P-4 dated 4.3.2011 passed an interim order that till 21.3.2011, the operation of order Annexure P-1 shall remain stayed, but in case the stay application of the petitioner is not considered by the appellate authority, then the aforesaid interim order shall continue further on payment of Rs.10 Lakh on or before 22.3.2011. Additional Commissioner of Income Tax (TDS), Bhopal fixed the case for hearing on 25.3.2011. It appears that the application for stay was not heard by the appellate authority, so the respondent no.1 passed another order dated 28.3.2011, by which it was directed that the amount of tax to be deposited by the petitioner in the installment @ Rs.5 Lakh per month till disposal of the first appeal and first installment was to be deposited on 31.3.2011 and thereafter regularly by 7th of every month.
This petition came for hearing on 5.4.2011, on which date we directed thus:-
"On deposit of Rs.5 Lakh by the petitioner, no coercive action shall be taken by the respondents No.1, 2, 3 and 4 against the petitioner in continuation to assessment order (Annexure P-1) dated 14.2.2011."
Now the grievance of the petitioner is that the appeal and stay application has not been heard by respondent no.3, so, till the disposal of the appeal, interim order passed by this Court on 5.4.2011 may be continued and respondent no.3 be directed to hear and decide the appeal within a period of fifteen days.
Shri Sanjay Lal, learned counsel for respondents submitted that at present this petition is premature. The appeal and stay application filed by the petitioner is still pending before respondent no.3 for consideration. Application for stay shall be considered within a period of fifteen from today and the appeal preferred by the petitioner shall be decided within three months from today.
It is submitted on behalf of the petitioner that the order dated 5.4.2011 may be continued till the decision of the appeal pending before respondent no.3.
Learned counsel for respondent no.3 opposed the aforesaid contention and submitted that respondent no.3 may decide the appeal within a period of fifteen days and till date order dated 5.4.2011 may be continued. He has placed reliance on the decision of the Apex Court in Hindustan Coca Cola Beverage (P) Ltd. Vs. Commissioner of Income Tax (2007)8 Supreme Court Cases 463 in support of his contention.
From the perusal of the aforesaid fact, we find that the appeal preferred by the petitioner against the order passed by respondent no.2 is still pending before respondent no.3. Petitioner's application for stay is also pending for consideration before respondent no.3. As the matter is subjudiced before respondent no.3, it would not be appropriate for this Court to pass a final order in this petition, as respondent no.3 has jurisdiction to consider the application for stay and decide the appeal of the petitioner finally.
For interim arrangement till the pendency of aforesaid application, this petition was entertained and for limitation purpose we issued aforesaid directions. As far as the appeal is concerned, it is to be heard and decided after consideration of all the contentions of the petitioner by the respondent no.3.
In view of the aforesaid, we finally dispose of this petition with the following directions:-
(i) Respondent no.3, before whom the petitioner's appeal (Annexure P-2) dated 3.3.2011 for the assessment year 2007-08 against order Annexure P-1 dated 14.2.2011 is pending, is directed to consider the application of the petitioner for stay within a period of fifteen days from the date of communication of this order.
(ii) Respondent no.3 is further directed to hear and decide the appeal filed by the petitioner expeditiously as far as possible within two months from date of communication of this order in accordance with law.
(iii) For a period of fifteen days or till the decision of the application seeking stay of order (Annexure P-1), it is directed that the interim order 5.4.2011 to continue.
C.C. as per rules.
(Krishn Kumar Lahoti) (Smt. Sushma Shrivastava)
JUDGE JUDGE
rv/