SCA/1094520/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10945 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No. 5 Whether it is to be circulated to the civil judge ? No. ========================================================= GUJARAT MARITIME BOARD - Petitioner(s) Versus ASSTT. COMMISSIONER OF INCOME-TAX - Respondent(s) ========================================================= Appearance : MR. S.N. SOPARKAR WITH MRS SWATI SOPARKAR for Petitioner(s) : 1, MR. M.R. BHATT WITH MRS. MAUNA M. BHATT, for the department. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 02/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. Rule. Mrs. Mauna R. Bhatt, learned Standing SCA/1094520/2008 2/5 JUDGMENT Counsel waives service of notice of Rule on behalf of the Revenue. 2. This petition is filed under Article 226 of the Constitution of India praying for quashing and setting aside the order dated 28-8-2008 Annexure-A and also praying for directions to the respondent not to recover the demand till the stay petition filed by the petitioner is disposed of by the ITAT, Ahmedabad. 3. Heard Mr. S.N. Soparkar, learned Sr. Counsel for the petitioner and Mr. M.R. Bhatt, learned Sr. Standing Counsel with Mrs. Mauna M. Bhatt, learned Standing Counsel appearing on caveat on behalf of the revenue and perused the memo of the petition as well as the affidavit-in-reply filed by Mr. D.C. Mishra, Assistant Commissioner of Income-Tax, Gandhinagar circle, Gandhinagar. 4. In view of the urgency and limited indulged sought for, the matter is taken up for hearing today itself. 5. Since the appeal and stay application are pending before the Income-Tax Appellate Tribunal, Ahmedabad, this Court has not gone into the merits of the matter. Both the learned counsels have made their submissions on the issue as to SCA/1094520/2008 3/5 JUDGMENT whether any stay can be granted in the present case. The Court has considered their submissions. 6. In view of the order passed by the CIT(A) for the assessment year 2004-05 in assessee's own case and in view of the Circular/ Instruction No.1914 dated 2/12/93 issued by the Central Board of Direct Tax and in view of the judgment of this Court in the case of Madhu Silica Pvt. Ltd. Vs. Commissioner of Income-Tax and Another, reported in (1997) 227 ITR 350 as well as the judgment of the Hon'ble Supreme Court in the case of Commissioner of Income-Tax Vs. Programme For Community Organisation, reported in (2001) 248 ITR 1, this Court is of the prima-facie view that the petitioner deserves for stay against the outstanding demand till the Tribunal hears and decides the stay application. 7. The preliminary objection raised by the Revenue that unless and until approval of the committee on this dispute is sought by the petitioner, the petition is not maintainable. This view is taken care of by the Andhra Pradesh High Court in the decision of Andhra Pradesh Power Generation Corporation Ltd. Vs. Assistant Commissioner of Income-Tax and Another, reported in (2006) 280 ITR 389, so far as the State Government undertaking is concerned and the SCA/1094520/2008 4/5 JUDGMENT dispute is between the State Government and the Central Government on their undertakings, no approval of COD is required. 8. Since, the matter is pending before the Income-Tax Appellate Tribunal, we have not discussed the controversy between the party at length. It is, however, required to be noted that the learned Commissioner of Income Tax has rejected the stay application of the Assessee only on 28-8-2008 and the assessee has preferred the stay application before the Income-Tax Appellate Tribunal on the first available opportunity i.e. on 1-9-2008. It is specifically prayed before the Tribunal to stay the outstanding demand till the decision of appeal and this was communicated to the respondent on 1-9-2008 itself. The petitioner was asked to pay the demand immediately or to face the dire consequences. Since the Tribunal is taking up the matter only on particular day in the week/fortnight, the petitioner has to rush this Court. 9. Since this court is of the prima facie view that the petitioner deserves stay against the demand in question in view of the peculiar facts and circumstances of the case till the Tribunal decides the stay application, the relief against SCA/1094520/2008 5/5 JUDGMENT stay of outstanding demand as prayed for in the present petition is granted till the Tribunal decides the stay application on the condition that the petitioner shall furnish Bank Guarantee or the letter from the State Government to the tune of Rs.20/- crores (Rupees Twenty Crores), within one week from today. It is made clear that this order would not come in the way of the Income-Tax Appellate Tribunal to decide the stay application and/or the appeal. It is open for the Tribunal to decide stay application and/or appeals on their own merits. It is expected that if disposal of appeals takes some time, stay applications may be decided as expeditiously as possible, preferably within one month from today. 10. Subject to the aforesaid observations and directions, this petition is disposed of. Rule is made absolute to the aforesaid extent. D.S. is permitted. (K.A. Puj, J.) (Bankim N. Mehta, J.) /JVSatwara/