Hon'ble Ashok Pal Singh,J.
It appears that provisional assessment orders were made in respect of the petitioner for the First Quarter and Fourth Quarter of the year 2009-10, First and Second Quarters of the year 2010-11 and for the month of October 2010.
Against the said provisional orders, each dated 8th December 2010, the petitioner filed five appeals before the Joint Commissioner (Appeals), Commercial Tax, Bareilly. Alongwith the Memorandum of Appeal, Stay Applications supported by affidavits of the proprietor were filed.
The Joint Commissioner (Appeals) passed stay orders, each dated 28th April 2011, in respect of the five Appeals filed by the petitioner. The Stay Order in respect of each Appeal was granted subject to the deposit of 50% of the disputed amount of tax involved in such Appeal by the petitioner.
The petitioner thereupon filed five Second Appeals against the said Stay Orders, each dated 28th April 2011, insofar as the said Stay Orders required the petitioner to deposit 50% of the disputed amount of tax involved respectively in such Appeals.
The said Second Appeals are stated to be pending before the Tribunal Commercial Tax, Bareilly Bench, Bareilly. The last date fixed before the Tribunal in all the five Second Appeals was 20th August 2011, as is evident from the certificate filed as Annexure 7 to the Writ Petition. The next date, as per the said certificate, fixed in respect of the five Second Appeals is now 21st September 2011.
It appears that in the meantime, a Citation dated 25th August 2011( Annexure-8 to the Writ Petition) has been issued requiring the petitioner to pay an amount of Rs. 22,53,800/- comprising Rs. 8,50,200/- in respect of the year 2010-11 and Rs. 14,03,600/- in respect of the year 2009-10, and in case of default, directing the petitioner to put his appearance on 10th September 2011 before the Tehsildar.
In the circumstances the present Writ Petition has been filed by the petitioner making following prayers:
"(i) to issue a writ, order of direction in the nature of certiorari, quashing the citation notice dated 25.08.2011 issued by respondent no.3 (Annexure-8 to the writ petition).
(ii) to issue a writ, order or direction in the nature of mandamus, directing the Commercial Tax Tribunal, Bareilly to decide the stay applications/ appeals filed by the petitioner forthwith.
(iii) to issue a writ, order or direction in the nature of mandamus, directing the respondent no.4 to refrain from realizing the disputed amount of tax for the assessment year 2009-10 and 2010-2011 in pursuance of the impugned provisional assessment orders all dated 08.01.2010 (Annexure-1 collectively to the writ petition).
(iv) to issue any other writ or order which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(v) to award the cost of the petition to the petitioner.?
We have heard Sri Kunwar Saxena, learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
When the Writ Petition came up before the Court on 8th September 2011, the learned Standing Counsel was granted time to obtain instructions in the matter particularly in regard to the averments made in the paragraph 10 of the Writ Petition. It has been averred by the petitioner in paragraph 10 of the Writ Petition that "no Member of the Tribunal have been posted at Bareilly on the dates when the aforesaid applications/ appeals were fixed for hearing".
Learned Standing Counsel states that the Member of the Tribunal will hold sitting with effect from 21st September 2011 till 24th September 2011. Learned Standing Counsel further submits that as 21st September 2011 is already fixed in the Second Appeals filed by the petitioner, the Second Appeals filed by the petitioner along with the Stay Applications may be considered by the Tribunal on the said date.
Sri Kunwar Saxena, learned counsel for the petitioner submits that as 21st September 2011 is the date fixed before the Tribunal, the respondent no.3 may be restrained from proceeding with the recovery pursuant to the Citation dated 25th August 2011 ( Annexure 8 to the writ petition), as otherwise the Second Appeals filed by the petitioner would be rendered infructuous.
In view of the above, we are of the view that the ends of justice would be subserved in case the present Writ Petition is disposed of with the following directions:
(1) By 19th September 2011, the petitioner will submit a certified copy of this order in the five Second Appeals filed by him before the Tribunal.
(2) The Tribunal will proceed to consider and decide the five Second Appeals along with Stay Applications filed on behalf of the petitioner on 21st September 2011, or in any case, within a week thereafter.
(3) Recovery pursuant to the Citation dated 25th August 2011 ( Annexure -8 to the Writ Petition) against the petitioner will remain stayed till 30th September 2011 or till the disposal of the Second Appeals along with Stay Applications filed by the petitioner, whichever is earlier.
The Writ Petition is accordingly disposed of with the aforesaid directions.
It is made clear that this Court has not adjudicated upon the case of the petitioner on merits, and the Tribunal will decide the Second Appeals along with Stay Applications filed on behalf of the petitioner un-influnced by any observation made in this Order.
Certified copy of this order will be provided to the learned counsel for the parties on payment of usual charges within 24 hours.
Order Date :- 9.9.2011 Abhishek Sri.