In a writ petition challenging recovery of Rs.12.70 crores and a remand report, the High Court held that since similar issues are pending before this Court as a reference, the stay on the assessment order has ended. The Court found this not a fit case to exercise writ jurisdiction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.550 OF 2009
M.Visvesvaraya Industrial Research and Development Centre
.. Petitioners
vs
The Assessing Officer & ors
.. Respondents
Mr.Firoz Andhyarujina, Sr.Counsel with Ms Sandhya Divekar i.b M/s Little & Co for Petitioner Dr.P.Daniel with Mr.P.S.Sahadevan for Respondents
CORAM : F.I.Rebello and
J.H.Bhatia, JJ
DATED: 28th April, 2009
P.C.
| 1. | The | petitioners in |
res | pect of Assessment |
years |
|---|---|---|---|---|---|
| 2002-2003, | 200 | 4-2005 and |
2 | 005-2006 considering |
the |
| circular | by | the CBDT |
had | moved the |
Assessing |
| Officer | not | to execute |
the | orders. The |
Assessing |
| Officer | passed | an order |
rejecting the |
said | |
| application. | Aggrieved | th | e petitioners |
herein | |
| moved | th | e Commissioner |
(A | dministrative) for |
stay |
| of | the | recovery. | The | Commissioner granted |
stay |
| upto | 30th | September, | 2008. The |
petitioners | |
| applied | for | further conti |
nuance. | The C |
ommissioner |
| did | not | extend the |
stay | as similar issues |
for |
| other | Asse | ssment years, |
are | also in issues |
before |
| this | Court | by way of |
a | reference, for |
Assessment |
years 1989-90 and 1990-91. This Court continued
the stay only up to 15th December, 2008.
| 2. | Subsequent | to | that, | the | Assessing Officer |
by |
|---|---|---|---|---|---|---|
| serving | notices | has | attached | or recovered |
moneys | |
| lying in the acc | ount of the petition | ers. It is o | n | |||
| account of that | the present petition | is filed. |
| 3. | The | reliefs | s |
ought | by | the | petitioners | are | to |
|---|---|---|---|---|---|---|---|---|---|
| set | aside | the | rema | nd | report | dated | 29th | November, | |
| 2001 | to | the | ext | ent | that | it has |
travel |
led | beyond |
| the | remand | made | by | this | Hon’ |
ble C |
ourt. | In | so far |
| as | this | relief | is | conc | erned, | that | issue | can | be |
| agitated | in | the | refer | ence | which | is | pending. | The | |
| matter | was | remand | ed | to | the | Tribunal | by | the | Court |
on that count. The reference is yet to be decided. 4. In so far as the relief of refund of Rs.12.70 crores, the petitioner has sought to challenge the action of the respondents on various grounds as are set out in paragraph 5 of the petition.
| 5. | In | so far |
as | contention nos. |
1 and |
2 are |
|---|---|---|---|---|---|---|
| concerned, | those are |
based on the |
circulars. | The | ||
| petitioner | earlier | had | moved | the | Assessing | |
| Officer. | That | was | rejected. | The | Commissioner | |
| (Administrat | ive) | granted | stay till |
30th | September, | |
| 2008 | which | this | Court | continued |
up | to 15th |
| December, | 2008. | After t |
his | Court | havin |
g not |
|
|---|---|---|---|---|---|---|---|
| continued | or | extended the |
stay | after | 15th | ||
| December, | 2008 | question | of | the | authorities | ||
| exercising | further | discretion | not | to | give | effect | |
| to | the | order | of assessment |
in | our | opinion, | would |
not arise. The circulars in such an event would
be inapplicable.
| 6. | In | so far as |
contentions nos. |
3,4 and |
5 | are |
|---|---|---|---|---|---|---|
| concerned, | once orders |
could be |
executed | and | that | |
| has | been | done after |
issuing |
notices | may | be |
| sufficient | time may |
not have been |
granted, | there | ||
| was | not | hing preventing |
the respondents |
as on |
the |
day of attachment and/or recovery from exercising
their powers.
| 7. | Considering | the | above, | in | our | opinion, | this is |
|---|---|---|---|---|---|---|---|
| not | a fit |
case | to | exercise | our | Writ | jurisdiction. |
| Suffice | it to |
say |
that | if | the | petitioner | succeeds |
ultimately on merits the respondents are bound to
return the money along with interest if any.
With the above observations, petition is
disposed of.
{ J.H.Bhatia, J } { F.I.Rebello, J }
2 issues framed by the court
Whether the writ jurisdiction should be exercised in view of the pendency of a reference regarding similar issues in other assessment years.
Whether sufficiency of time was granted before attachment and recovery despite the statutory notices being served.
M.Visvesvaraya Industrial Research and Development Centre
The Assessing Officer
F.I.Rebello
J.H.Bhatia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
