TMI Blog2016 (6) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to the provisions of law. Under the circumstances, the petition deserves to be allowed by issuing the directions as prayed for therein. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The respondent is directed to forthwith give effect to the order dated 5.9.2013 passed by the Commissioner (Appeals) and grant consequential refund along with interest, after adjustment of any outstanding dues. Having regard to the fact that the petitioner was required to approach this court on account of the inaction on the part of the respondent in not complying with the statutory duty cast upon him, costs are quantified at ₹ 10,000/- (Rupees ten thousand). - SPECIAL CIVIL APPLICATION NO. 12503 of 2015 - - - Dated:- 27-4-2016 - MS.HARSHA DEVANI MR. G.R.UDHWANI JJ. For the Appellant: Niyati N Vaidya, Advocate For the Respondent: Mr. KM Parikh, Advocate ORAL JUDGMENT (PER : MS. HARSHA DEVANI) 1. Rule. Mr. K.M. Parikh, learned senior standing counsel, waives service of notice of rule on behalf of the respondent. Having regard to the controversy involved in the present case, the matter was taken up for final hearing yes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of giving effect to the appellate orders, to submit that the respondent herein is duty bound to give effect to the order passed by the Commissioner (Appeals). Reference was also made to the Citizen s Charter, 2014 (Annexure-K to the petition) to point out that the respondent was required to give effect to the appellate order within a period of one month from the date of such order. It was pointed out that against the order dated 5.9.2013 passed by the Commissioner (Appeals), the department has preferred an appeal before the Tribunal; however, no stay has been granted by the Tribunal and hence, the respondent is duty bound to comply with the order passed by the Commissioner (Appeals) and give effect to it. It was, accordingly, urged that the petition deserves to be allowed by granting the reliefs as prayed for. 5. Opposing the petition, Mr. K. M. Parikh, learned senior standing counsel for the respondent placed reliance upon the averments made in the affidavit-in-reply filed on behalf of the respondent, wherein, the stand taken by the respondent is that the department has preferred an appeal against the order dated 5.9.2013 passed by the Commissioner (Appeals) and hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him. Several reminders were forwarded to the Commissioner (Appeals) for passing an order on the rectification application; however, there was considerable delay in deciding the same. In these circumstances, despite the pendency of the rectification application, the petitioner moved an appeal before the Tribunal against the order dated 19.11.2008 passed by the Commissioner (Appeals). However, during the pendency of the appeal, the Commissioner (Appeals) by an order dated 5.9.2013 rectified the earlier order and directed the Assessing Officer to allow the expenditure which was earlier disallowed under section 40(a)(ia) of the Act where the TDS deducted was deposited with the Government before due date of filing return under section 139(1) of the Act. In view of the fact that the grievance voiced by the petitioner in the appeal preferred before the Tribunal no longer survived, the petitioner sought permission to withdraw the appeal and, accordingly, by an order dated 10.1.2014 the Tribunal dismissed the appeal as withdrawn. It appears that against the order dated 5.9.2013 passed by the Commissioner (Appeals), the department has preferred an appeal before the Tribunal which is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and is in operation, whereas on the other hand, it is stated that since the rectification order dated 5.9.2013 is subject-matter of challenge before the Tribunal, it cannot be given effect to at this stage. Essentially the stand of the respondent is that one way or the other, the order dated 5.9.2013 passed by the Commissioner (Appeals) is not required to be given effect to. 10. In the opinion of this court, while not giving effect to the order dated 5.9.2013 passed by the Commissioner (Appeals), the respondent appears to have lost sight of all the statutory provisions and the guidelines issued by the Board from time to time which oblige him to give effect to the order dated 5.9.2013 passed by the Commissioner (Appeals). It may be that the respondent is aggrieved by the order passed by the Commissioner (Appeals) and may have preferred an appeal before the Tribunal; nonetheless, as on date, such order is in operation as the same has not been stayed by the Tribunal or any other court of competent jurisdiction. Under the circumstances, the respondent is statutorily bound to give effect to the said order. 11. Moreover, it is difficult to understand the adamant approach a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
