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2004 DIGILAW 179 (CAL)

BHABI PROPERTIES PRIVATE LIMITED v. DEPUTY COMMISSIONER OF INCOME TAX COMPANY CIRCLE-9 (1), KOLKATA

2004-03-11

MAHEMMAD HABEEB SHAMS ANSARI, SOUMITRA PAL

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( 1 ) 1. Heard Mr. Majumdar, learned Advocate for the applicant/ assessee. ( 2 ) SINCE the issue involved is same, it is disposed of by a common order. ( 3 ) THE assessee has filed applications for a stay of the penalty proceedings under section 18 (l) (c) of the Wealth Tax Act, 1957 (hereinafter referred to as the said Act) for the assessment years 1990-91,1991-92 and 1992-93 initiated by the Assessing Officer and communicated to the assessee by letter dated 8. 12. 2003/15. 1. 2004 being Annexure P-10 to the applications. ( 4 ) MR. Majumdar submitted that the High Court admitted appeals preferred by the assessee under section 27a of the said Act against the order dated 27. 6. 2003 passed by the Tribunal for the assessment years 1990-91, 1991-92 and 1992-93, since it found that there were substantial questions of law arising out of the said orders of the Tribunal and the penalty proceedings initiated were relating to the same assessment years. It was submitted that since the said appeals are pending penalty proceedings initiated should be stayed pending hearing of the appeals. Reliance was placed on the judgments of the Apex Court in Cement Marketing Co. of India Limited vs. Assistant Commissioner of Sales tax, Indore, reported in 124 I. T. R. 15; Jaswant Rai and Anr. vs. Central Board of direct Taxes and Revenue and Ors. , reported in 231 I. T. R. 745 and J. K Synthetics ltd. vs. Commercial Tax Officer, reported in 1994 (4) SCC 276 . ( 5 ) WE are of the view that the submissions of the learned Advocate for the applicant are not tenable as the penalty proceedings initiated are distinct and separate from the regular proceedings under the said Act. Separate procedure for penalty has been laid down under the said Act. The appeals pending on the file of this Court are with respect to the questions of law arising out of the order of the Tribunal. The scope of the appeal is, therefore, limited to the determination of those questions of law arising out of the order of the Tribunal. The applications filed for stay of the penalty proceedings which do not arise or form part of the order of the Tribunal is, in our view, therefore, not maintainable. The scope of the appeal is, therefore, limited to the determination of those questions of law arising out of the order of the Tribunal. The applications filed for stay of the penalty proceedings which do not arise or form part of the order of the Tribunal is, in our view, therefore, not maintainable. The judgments cited by the learned Counsel do not deal with this aspect of the matter and therefore have no relevance in the facts and circumstances of the case. Hence, the applications are dismissed as not maintainable. ( 6 ) THIS order shall not preclude the petitioner from taking such proceedings as are open to him in law and as he may he advised with respect to the said penalty proceedings. ( 7 ) HOWEVER, in the facts and circumstances of the case there shall be no order as to costs. Later on 11. 03. 04 Urgent xerox certified copy of this judgment and order be supplied to the parties on priority basis, if applied for. Applications dismissed.