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Dr S.K. Mishra v. Union Of India & Others - WRIT TAX No. 1327 of 2005 [2005] RD-AH 3561 (26 September 2005)


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Court No. 10

Civil Misc. Writ Petition No. 1327 of 2005

Dr. S.K. Mishra Vs. Union of India and another

Hon'ble A.K.Yog, J.

Hon'ble Dilip Gupta,J.

Heard Sri Pankaj Bhatia, Advocate on behalf of the petitioner and Sri Ashok Kumar, Advocate representing the Respondents. Perused the paper book of the writ petition.

Writ Petition is being finally decided since all the Respondents are served as contemplated under Chapter XXII Rule 1 second proviso, Rules of Court.

Sri Ashok Kumar, Advocate sought some time to file counter affidavit. Consider the nature of the case and the order we propose to pass, we find that filing of counter affidavit will be a futile exercise and burdening the public exchequer.

According to the petitioner, search was conducted on premises owned and possessed by him under Section 132(1) of the Income Tax Act on 14-9-2002; on 28-9-2004 assessment order was passed against the petitioner assessing his income at Rs. 39,86,615/- and total tax liability at Rs. 25,11,567/-; aforesaid order dated 28-9-2004 was challenged by filing Appeal before Commissioner of Income Tax (Appeals), Kanpur; petitioner also filed application under Section 20(6) of the Income Tax Act praying that demand of tax be stayed; on 4-11-2004 Deputy Commissioner of Income Tax refused to grant interim order in favour of the petitioner and required him to make payment of the demand, alternatively in installments; on 12-11-2004 petitioner attended  the office of Respondent as required  vide order dated 4-11-2004; on 17-12-1004 an order/Annexure-3 to the writ petition was passed whereby Deputy Commissioner of Income tax, Central Circle-II, Kanpur informed and required the petitioner, on the basis of consideration of facts and circumstances of the case, to deposit 20%  of the demand by December, 2004 and further to pay installments of Rs. 25,000/- per month beginning from January, 2005 subject to certain conditions contained in the aforesaid order.

It is pleaded before this Court by means of the present writ petition that installments are being paid or duly adjusted on the basis of refund allowed by the Department and that there is no default in complying with the aforesaid order dated 17-12-2004/Annexure-3 to the writ petition.

It is submitted that since earlier incumbent was transferred and new incumbent took over charge, he has reopened the interim matter already decided and passed the impugned order dated 21-9-2005, primarily on the ground that the petitioner did not produce challan for payment in the Income tax office and same were produced only when he was asked and that no reasonable scheme of demand having been proposed, considering heavy demand, earlier order dated 17-12-1004 fixing installments (referred to above) was withdrawn with direction to make  payment of entire amount of demand along with interest and produce proof of payment by September 23, 2005 before the said authority, failing which coercive action as per law was proposed.

Considering the facts and circumstances of the case and perse reasons disclosed in the impugned order, we have no doubt that new incumbent has unduly stressed the fact of producing challan of demand only and making it basis for recalling of earlier order dated 17-12-2004.

We are informed that appeal is still pending. In the entirety of the circumstances re-capitulated above, we find that the impugned order dated 21-9-2005/Annexure-6 to the writ petition cannot be sustained as it suffers from manifest error apparent on the face of record and having been passed on unsustainable and misconceived ground.

Consequently, the impugned order dated 21-9-2005/Annexure-6 to the writ petition is hereby set aside with direction to the concerned authority to decide the appeal in accordance with law.

Petitioner is directed to comply with earlier order dated 17-12-2004/Annexure-3 to the writ petition. We further permit the respondents to file application for review in case the Department finds that any of the facts mentioned in the writ petition are incorrect.

Writ Petition stands allowed subject to the above observations/directions.

No order as to costs.



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