- (1.) This writ petition seeks to challenge the order dated August 19, 2003, passed by the Tax Recovery Officer. According to the facts set up in the petition, the petitioner-partnership firm is dealer in handicrafts items. During the year under consideration, a survey under section 133A of the Income-tax Act, 1961 was conducted at its business premises. A surrender of Rs. 5,08,98,166 was taken on the alleged physical stock enforcing admission of undisclosed income of the assessee, vide notice dated October 24, 2013 (annexure 7). The Commissioner of Income-tax (Appeals) allowed the relief of Rs. 1,43,32,393 thereby sustaining the addition of Rs. 3,42,96,531. The petitioner filed an appeal before the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur. The appeal was taken up for hearing on April 15, 2013, along with application seeking interim relief. On that day, the following order was passed by the Tribunal: Heard parties. Having perused the material, we are satisfied that the assessee has an arguable case. We, therefore, direct that the assessee's appeal shall be heard on out of turn basis along with the Department's cross-appeal, if any, in the first week of sitting of the Division Bench of the Income-tax Appellate Tribunal, Jaipur, in the month of June, 2013. Till such time no coercive measures shall be taken for recovery of demand from the assessee. Accordingly, the stay application stands disposed of as pronounced in the open court after conclusion of hearing on April 15, 2013.
(2.) It is, however, informed that despite direction of the Tribunal that the appeal shall be heard and decided in first week of June, 2013, the Bench of the Income-tax Appellate Tribunal was not available in the month of June to hear the matter. It was later conveyed to the petitioner-assessee that hearing of the appeal shall take place on August 19, 2013. The petitioner submitted a written application to the Tribunal on August 13, 2013, for a date in the next month on the premise that a senior counsel was to appear on its behalf. The Tribunal on hearing the matter on August 19, 2013, however, passed the following order: Heard parties. The assessee's appeal in I.T.A. No. 271/JP/2013 is listed for hearing today on August 19, 2013, and the assessee seeks adjournment in that case. There thus does not appear to be any urgency for getting the dispute resolved by him. That apart, we do not find this to be a good case for granting absolute stay. Finding no merit, we reject the stay and dismiss both the applications for adjournment as well as the stay application.
(3.) Shri S.M. Mehta, learned senior counsel for the petitioner-assessee, argued that when the Tribunal has disposed of the stay application with the observation that the petitioner has an arguable case, which means that it had a prima facie case and with the further direction that the matter shall be heard finally in the month of June, 2013, if the matter was not heard for want of corum or non-availability of the Bench of the Tribunal, the petitioner cannot be blamed. If the Tribunal was not formed or request of the petitioner for fixing the matter in the month of September was not accepted, the Tribunal ought to have proceeded and heard the appeal finally now. It is argued that the Tribunal consisting of two members while passing the order dated April 15, 2013 (annexure 4) having held that the petitioner has an arguable case, could not have taken a diametrically opposite view on August 19, 2013, that it find no merit in the stay petition, especially when one of the members was common in the composition of the Bench of the Tribunal. Learned senior counsel submitted that the petitioner is prepared to argue the appeal finally, subject to any order that may be passed by this court within a specified time period, subject to the order passed by this court.;