TMI Blog1997 (3) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... eged to have been approved by the Government of India, vide letter dated March 27, 1996. It has been further averred that subsequently some amendments were made in the original agreement and even the amendments made subsequently were also approved by the Government of India, vide letter dated July 15, 1996. It has been further averred that the petitioner-company filed an application under section 195(2) of the Income-tax Act, 1961 (hereinafter referred to as the "Act 1961"), before the Assessing Officer, the Deputy Commissioner of Income-tax, Special Range II, Jaipur, on October 29, 1996, to determine the taxability of income under the head technical know-how fees and basic process engineering fees and also for NOC to remit the first instalment of the same. The Assessing Officer, vide order dated December 20, 1996, rejected the aforesaid application and the copy of the order was received by the petitioner on December 23, 1996. The petitioner feeling aggrieved against the aforesaid order preferred an appeal before the Commissioner of Income-tax (Appeals) under section 248 of the Act, 1961. A photocopy of the same has been annexed as annexure-2 to the writ petition. Along with the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jasthan (PAN : 30-2-029-CY-0457 (DC(A), Sr.II, Jaipur), for remitting US dollars 75 lakhs (USD seventy-five lakhs only) towards lumpsum technical know-how fees and US dollars 10.5 lakhs (USD ten lakhs fifty thousand only) towards lumpsum payment of basic process engineering fees to Technimont, S. P. A. Milan of Italy. Sd./(O. P. Meena), Deputy Commissioner of Income-tax (Assessment), Special Range-2, Jaipur." The Deputy Commissioner of Income-tax (Assessment), Special Range II, Jaipur, vide letter dated December 30, 1996, directed the petitioner to pay TDS demand arising due to the remittance of 75+10.5 US dollars before March 15, 1997, in case the petitioner-company is unable to obtain a favourable decision from the Commissioner of Income-tax (Appeals) or a favourable decision from the Central Board of Direct Taxes by March 15, 1997, and also advised the petitioner company that on failure to pay the same, interest will be charged as per rules. A photocopy of the said letter is filed as annexure-6 to the writ petition. The Commissioner of Income-tax (Appeals), Rajasthan II, Jaipur, vide order dated March 11, 1997, upheld the order of the Deputy Commissioner of Income-tax (Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting up one more Bench for the State of Rajasthan at Jaipur or Jodhpur. I consider it proper to incorporate the peculiar facts of the aforesaid representations in extenso, which runs as under : "The Jaipur Bench of the Income-tax Appellate Tribunal was set up in the year 1971 for the whole of the State of Rajasthan. At that time, the pendency of appeals was of about 1,500. Later, when the pendency rose to 4,000 an additional Bench functioned for more than one year to liquidate pendency and in order to dispose of an appeal within six to eight months of the institution. The present pendency in the Jaipur Bench of the Tribunal is more than 12,000 and it is taking more than six years for disposal. Some of the appeals instituted in the years 1989, 1990 are also pending. On the elevation in July, 1995, of Mr. M. A. A. Khan, the then Judicial Member, posted at Jaipur Bench of the Tribunal as the judge of the High Court of Judicature of Rajasthan, the seat became vacant. The regular posting was made in February 1996, of Mr. N. K. Agarwal. Meanwhile very few visiting Benches functioned. Mr. N. K. Agarwal was also elevated as judge of the Rajasthan High Court in March, 1996. Mr. M. A. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has placed reliance on a decision of the Madras High Court in Hi Life Tapes P. Ltd. v. Collector of Central Excise [1986] 26 ELT 935. I have perused the aforesaid judgment. The facts of the said case are almost similar inasmuch as, pending appeal/stay application the recovery was being made against the assessee without passing any order on the stay application and the court directed the Appellate Tribunal to decide the stay application within a fixed period and in the meantime the recovery was stayed. Learned counsel in order to strengthen his argument placed reliance on another decision of the Madhya Pradesh High Court in Badrilal Bholaram v. B. K. Srivastava, ITO [1970] 77 ITR 954. The observation made by the court in the case of Badrilal Bholaram [1970] 77 ITR 954 (MP), is also to the effect that if the Income-tax Officer fails to discharge his duties, he should be compelled by a writ under article 226 of the Constitution of India to stay his hands without disposing of the stay application. Lastly, learned counsel for the petitioner places reliance on a decision of the Kerala High Court in P. V. Varghese v. CEGAT, Madras [1989] 41 ELT 625. In that case too, the court observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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