Sathar E.M. vs The Income Tax Officer and Sharafuddeen P.P.

M. Sasidharan Nambiar, J.—Pursuant to Ext.P1 order in Crl.M.C.5047/2008, petitioner was permitted to have interim custody of the cash seized in Crime No. 135/2008 of Bekal Police Station. Subsequently, based on the assessment order, Income Tax Officer approached the learned Magistrate for a direction to the petitioner to deposit Rs. 5,68,560/-, being the income tax payable by the petitioner as assessed. Ext.P3 notice was issued by the learned Magistrate in that application, directing him to appear before the Magistrate on 19/6/2010. This petition is filed under Article 227 of Constitution of India for a writ of mandamus directing Judicial First Class Magistrate-II, Hosdurg to keep in abeyance further proceedings in C.M.P.1768/2010, contending that challenging the order of dismissal, petitioner had already filed Ext.P2 appeal before Commissioner (Appeals) of Income Tax, Kozhikode. Case of the petitioner is that if before disposal of the appeal, petitioner is to pay the amount as assessed by the Income Tax Authorities, which is challenged in the appeal, the appeal itself will become infructuous.

Learned Counsel appearing for the petitioner and learned Standing Counsel appearing for first respondent were heard.

Petitioner did not produce copy of C.M.P.1768/2010 which was sought to be kept in abeyance by issuing a writ of mandamus. The fact that petitioner filed Ext.P2 appeal against the order passed by the Income Tax Officer, is not a ground to contend that he is not liable to pay that amount. So long as there is no order of stay, learned Magistrate can proceed with application. It is upto the petitioner to seek an order of stay in Ext.P2 appeal. Learned Counsel appearing for the petitioner submitted that the appeal is not posted for a particular day and therefore, petitioner could not get an order of stay.

Writ petition is disposed directing Judicial First Class Magistrate''s Court-II, Hosdurg to keep in abeyance further proceedings in C.M.P.1768/2010 for three weeks from today making it clear that it is upto the petitioner to get an order from the Appellate Authority, before that date.