TaxTMI 
TaxTMI 
2005 (7) TMI 69
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....ad, to dispose of the appeal of the petitioner for the assessment year 2002-03 pending before him (annexure 5) expeditiously, out of turn and if possible within one month. (ii) Issue a writ, order or direction in the nature of mandamus directing the Commissioner of Income-tax (Appeals), Ghaziabad, to dispose of the stay application of the petitioner refunding the amount recovered by respondent No. 1. (iii) Issue a writ, order or direction in the nature of mandamus restraining respondent No. 1 to recover the balance amount of Rs. 34,17,663.30 from the petitioner till the disposal of the first appeal. (iv) Any other or further writ, order or direction which this hon'ble court may deem fit and proper in the circumstances of the case. (v) Award cost to the petitioner." Briefly stated, the facts giving rise to the present petition are as follows: According to the petitioner, the bank has been established under the Regional Rural Banks Act, 1976. 50 per cent. of its shares are being held by the Government of India, 35 per cent. shares by the Bank of India, which is a nationalised bank and remaining 15 per cent. shares are held by the Government of Uttar Pradesh. Its bus....
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....memo of appeal, the petitioner also filed an application for stay of demand pending decision in appeal. The Commissioner of Income-tax (Appeals), respondent No. 2, however, did not pass any order on the petitioner's application for grant of stay and as it was apprehending the attachment of its bank accounts lying with the State Bank of India, Fatehgarh, and Farrukhabad branches, it filed an application dated April 5, 2005, under section 220(6) of the Act before respondent No. 1 on April 6, 2005, seeking stay of the demand during the pendency of the first appeal filed by it before the Commissioner of Income-tax (Appeals), Ghaziabad. Instead of disposing of the application dated April 5, 2005, respondent No. 1 issued notices on April 6, 2005, under section 226(3) of the Act to the branch manager, clearing account, State Bank of India, Farrukhabad, and the current account in the State Bank of India, Fatehgarh branch. On receipt of the aforesaid notices, the State Bank of India, clearing account, Farrukhabad branch, remitted a sum of Rs. 84,33,218.70 and the State Bank of India, Fatehgarh branch, remitted a sum of Rs. 9,81,388. The aforesaid two amounts, totalling Rs. 94,14,608.70, wer....
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....tava did not deal with the averments made in the various paragraphs of the writ petition, a counter affidavit has been filed by Sri Nizammuddin, Income-tax Officer, posted in the office of respondent No. 1, in which it has been denied that the petitioner-bank is a co-operative society. Exemption under section 80P(2)(a)(i) of the Act is not admissible. The application for stay was rejected by respondent No. 1 bearing in mind that the assessee was not short of funds and it had no desire to pay and that no hardship would have been caused to it in paying the demand of Rs. 1,28,32,270 which is 0.1 per cent. of the total fund at its disposal, out of the huge easily realisable asset of Rs. 273 crores. It has further been stated that there is no bar on the Assessing Officer to proceed with the recovery only after all avenues have been exhausted or legal remedy availed of. The attachment of the bank accounts can only be lifted after the entire amount is realised. In the reply filed by the petitioner to the affidavit of Rakesh Kumar Srivastava, the petitioner has stated that the date/period for making payment of Rs. 1,28,32,270 was left blank and the approval has not been annexed with the....
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.... of the court. We have heard Sri Shakeel Ahmed, learned counsel for the petitioner, and Sri Govind Krishna, learned standing counsel appearing for the respondents. Sri Shakeel Ahmad, learned counsel for the petitioner, submitted that, under sub-section (1) of section 220 of the Act, an assessee is allowed 30 days from the date of the service of the notice to pay the amount specified in the notice of demand under section 156 of the Act. However, it can be reduced by the assessing authority only if he has any reason to believe that it would be detrimental to the Revenue if the full period of 30 days is allowed. However, before reducing the period, approval of the Joint Commissioner is required to be taken. According to him, in the present case, the Assessing Officer did not have any reason to believe that if the full period of 30 days is allowed to the petitioner for payment of the amount specified in the notice of demand under section 156 of the Act, it would be detrimental to the Revenue inasmuch as the petitioner is a body owned by the Central Government, the State Government and a nationalised bank which is owned and controlled by the Central Government. He further submitte....
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....ITR 571 (P&H); (iii) Mrs. R. Mani Goyal v. CIT [1996] 217 ITR 641 (All); and (iv) Farrukhabad Gramin Bank v. ITO [2005] 273 ITR 113 (All). Sri Govind Krishna, learned standing counsel, submitted that under the proviso to sub-section (1) of section 220 of the Act the assessing authority has been empowered to reduce the period of 30 days in the notice of demand and as in the present case the Additional Commissioner of Income-tax was also the Joint Commissioner of Income-tax, the approval by the Joint Commissioner can be readily inferred. He has recorded reasons for reducing the period taking into consideration the previous history of the petitioner in not paying the tax. According to him, the petitioner had already preferred an appeal before the Commissioner of Income-tax (Appeals) and the assessment order is sub judice, therefore, the plea of exemption under section 80P(2)(a)(i) of the Act raised by the petitioner should be left to be adjudicated upon by the assessing authority. He further submitted that the appellate authority has the power to grant interim relief for which an application has already been made and, therefore, this court should not exercise its jurisdiction....
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....he court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartially of public administration, a court may well be justified in granting interim relief against public authority. In the case of Mohd. Ghulam Ghouse, AIR 2004 SC 1467, the apex court has deprecated the practice of the High Court in entertaining the writ petition questioning the legality of the show-cause notice stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. It has held as follows: "This court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show-cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions s....
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....ision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expendi....
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....ioner of Income-tax under sub-section (1) of section 117;" From a reading of the definition of the words "Joint Commissioner", reproduced above, it is seen that an Additional Commissioner of Income-tax is also the Joint Commissioner. This court in Civil Miscellaneous Writ Petition No. 1646 of 2002, Dharam Pal Singh Rao v. ITO [2004] 271 ITR 223, decided on August 5, 2004, has held that in view of the definition of the words "Joint Commissioner" in section 2(28C) of the Act, an Additional Commissioner is to be treated as a Joint Commissioner. We further find that under section 120 of the Act which deals with the jurisdiction of the income-tax authorities, sub-section (5) thereof provides that where there are two or more Assessing Officers to exercise and perform concurrently the powers and functions in respect of any area or persons or classes of persons or incomes or classes of income or cases or classes of cases and if such powers and functions are exercised by any higher authorities then any provision of the Act requiring approval or sanction of any such authority shall not apply. For ready reference, sub-section (5) of section 120 of the Act is reproduced below: "(5) Th....
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.... definition of the words "Assessing Officer" given in section 2(7A) of the Act; "Joint Commissioner" given in section 2(28C) of the Act and the jurisdiction of the income-tax authorities as mentioned in sub-section (5) of section 120 of the Act, it follows that the Additional Commissioner being included in the word Joint Commissioner and also being the Assessing Officer, is not required to seek previous approval of any higher authority as required under the proviso to sub-section (1) of section 220 of the Act while reducing the full period of 30 days in the notice of demand. Thus, the plea raised by learned counsel for the petitioner that where the Additional Commissioner is the assessing authority and he is going to reduce the full period of 30 days, he ought to have obtained previous approval of the next higher authority, is misconceived and cannot be accepted. The next question which came up for consideration is as to whether respondent No. 1 had any reasons to believe that if the full period of 30 days is given to pay the amount mentioned in the notice of demand, it would be detrimental to the Revenue. Learned standing counsel has produced before us the original record conta....
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....d in abuse of the powers under sub-section (1) of section 40. The assessee is entitled to a reasonable time for payment of the tax assessed and it is the duty of the assessing authority to give a reasonable time in the notice of demand for payment of the tax assessed. Therefore, the contention that under section 40, it is open to the assessing authority to fix any shorter time for payment than that indicated in the section itself and, in the absence of any principle or guidance, the time to be fixed is left entirely to the whims and fancies of the Agricultural Income-tax Officer, has no substance. Therefore, section 40(1) is not violative of article 14 of the Constitution and is neither unconstitutional nor void. The Kerala High Court has further held that where the order of assessment for the assessment year 1986-87 was passed on March 11, 1987, and a notice of demand of the same date was served on the assessee on March 13, 1987, requiring the assessee to pay the tax assessed on or before March 18, 1987, and in default thereof proposing to impose penalty, it was held that the assessing authority was not justified in granting such a short time for payment of tax and in imposing pen....