Marimallappa Charities Vs. Addl. Cit and anr. - Court Judgment

Excerpt:

.....-moreover, many inconsistencies in evidence of pw-1 and pw-2 - no member of crowd which had gathered had been examined - presence of pw-1 doubted - held, case under section 302 ipc is not made out. conviction was set aside. indian penal code, 1890. section 456: house breaking by night fir lodged by pw1 and he had not mentioned that accused no.4 and 5 broke open their flat and occupied it - no reason assigned for such omission - moreover, pw4 father of pw1 did not even whisper about forcible occupation of their flat by accused nos. 4 and 5 held, omission to mention the fact regarding the occupation of flat by accused nos. 4 and 5 in fir held to be very important circumstances, fatal to prosecution case. conviction under section 456 not warranted. .....disposed of by the assessing authority.4. it appears that the assessing authority, addl. cit, mysore, as per his order dated 12-3-2009 purporting to act under section 220(3) of the act, has given four instalments facility to the petitioner as a measure of stay to be operative during the pendency of the appeal before the commissioner (appeals). the assessing authority directed that the four instalments at rs. 10,00,000 was to be paid by 20-6-2009 and that the first instalment of rs. 10,00,000 was to be paid by 20-3-2009 and directed to issue challan for rs. 10,00,000 for making payment of the first instalment and also observed that in case of default in making payment, the entire amount may be taken to be due and can be recovered from the petitioner at once. it is aggrieved by this order, the present writ petition.5. submission of sri. m. veerabhadraiah, learned counsel appearing for the petitioner is that the assessing authority has not passed proper order on an application; that the petitioner's application was only for stay and not one under section 220(3) of the act, seeking for any instalment facility; that the impugned order, has left the petitioner high and dry; that he is.....

Judgment:

ORDER

D.V. Shylendra Kumar, J.

1. Writ petitioner is an assessee under the Income Tax Act, 1961. It appears that the petitioner was not happy with the assessment order passed by the assessing authority in respect of the assessment year 2006-07 raising a demand for payment of income-tax amounting to Rs. 38,38,994.

2. Petitioner has filed an appeal under Section 246A of the Income Tax Act and the appeal is pending before the appellate authority. Petitioner it appears, had also filed an application under Section 251 of the Act, seeking for stay of enforcement of the demand pursuant to the assessment order.

3. Appellate authority on noticing that as the petitioner had filed an application for stay before the assessing authority and being of the view that the application for stay before him was premature, disposed of the application observing that the assessing authority is being directed to dispose of the said application filed by the petitioner at the earliest and also observed that it is open to the appellant/petitioner to move a fresh stay application before the appellate authority, if he so desires, or if it should become necessary after the stay application is disposed of by the assessing authority.

4. It appears that the assessing authority, Addl. CIT, Mysore, as per his order dated 12-3-2009 purporting to act under Section 220(3) of the Act, has given four instalments facility to the petitioner as a measure of stay to be operative during the pendency of the appeal before the Commissioner (Appeals). The assessing authority directed that the four instalments at Rs. 10,00,000 was to be paid by 20-6-2009 and that the first instalment of Rs. 10,00,000 was to be paid by 20-3-2009 and directed to issue challan for Rs. 10,00,000 for making payment of the first instalment and also observed that in case of default in making payment, the entire amount may be taken to be due and can be recovered from the petitioner at once. It is aggrieved by this order, the present writ petition.

5. Submission of Sri. M. Veerabhadraiah, learned Counsel appearing for the petitioner is that the assessing authority has not passed proper order on an application; that the petitioner's application was only for stay and not one under Section 220(3) of the Act, seeking for any instalment facility; that the impugned order, has left the petitioner high and dry; that he is not in a position to act as per the interim stay of the demand either before the assessing authority or before the appellate authority and the assessing authority, has acted even without an application, on his own, and has passed an inconvenient order to the petitioner and therefore the petitioner is before this Court not only to quash the impugned order passed by the assessing authority, Annex. 'G but also to direct the appellate authority to pass order on the appeal and also to grant interim order as it deems fit.

6. The petitioner in his appeal before the appellate authority had moved an application for stay and it was the Commissioner (Appeals), who noticed that the petitioner had also filed an application for stay before the assessing authority and therefore thought that the application for stay before him, was premature and directed assessing authority to dispose of the application, in the first instance, and also gave liberty to the petitioner to approach him again in case there was need and after the stay application was disposed of by the assessing officer.

7. The assessing officer has disposed of the stay application in terms of the order dated 12-3-2009, Annex. 'G'. It is for the petitioner to take benefit of this order or if not satisfied to go back to the appellate authority reviving his application for stay.

8. Mr. Veerabhadraiah, learned Counsel appearing for the petitioner submits that the petitioner has already filed an application before the appellate authority. If that is so, the petitioner is at liberty to appear before the appellate authority and to pursue his application. No need to interfere at this stage.

9. Petition is dismissed.