MISC. A. (STAY) NO. 88/LB-1 OF 1988-89, DECIDED ON 21ST MAY, 1989. VS MISC. A. (STAY) NO. 88/LB-1 OF 1988-89, DECIDED ON 21ST MAY, 1989., 1992 PTD-INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN 1608 (1989)

Income Tax Ordinance (XXXI of 1979)---

----S.134(6)---Stay of recovery of tax ---Assessee seeking relief in terms of stay order against the alleged recovery of amount which was added back under S.13(1) & (2) of the Ordinance---Violation of mandatory provisions of law had taken place---True criterion to consider on which side the balance- of inconvenience and not of convenience stated.

Prima facie case had been made out for seeking relief in terms of stay order against the alleged recovery of Rs.1,24,228 which was added back under sections 13(1) and 13(2) of the Ordinance. The assessee's contentions apparently looked forceful as there might have been violation of mandatory provisions of the Ordinance. The true criterion is to consider on which side the balance of inconvenience and not of convenience would lie in case interlocutory injunction is refused. When the applicant for interlocutory injunction is able to show prima facie the existence of a right and its infringement, injunction will issue only if the circumstances are such, that the object really is to avoid the comparative inconvenience or mischief which is likely to result from refusing it, in other words the inconvenience will be greater than that which is likely to arise from refusing it, as non-payment of the impugned tax demand might cause serious harm not only to the applicant as the warrant of arrest had already been issued but might also cause disturbance in that atmosphere of business area.

The recovery of tax demand at Rs.1,24,228 was stayed till the final adjudication of the assessee's appeal or the expiry of the period of three months from the date of the order, whichever was earlier.

Rasheed Ahmad Shaikh for Petitioner.

Nazir Ahmad Zia, A.C./D.R. for Respondent.

Date of hearing: 21st May, 1989.

ORDER

FAKHARUDDIN SIDDIQUI (JUDICIAL MEMBER).---By this Miscellaneous application seeking grant of stay till final adjudication of the petitioner/assessee's main appeal and against the recovery of tax demand at Rs.1,24,228 inclusive of additional tax of Rs.9,335 after appeal effect, or in the alternative to hear the case out of turn-which relates to the charge year 1986-87 alleging the authority to assessee by the ITO after stipulated period, lack of positive evidence, and the petitioner has been condemned unheard while making additions against him under sections 13(1) and 13(2) of the Income-tax Ordinance of 1979 (hereinafter called the "Ordinance").

2. Briefly recounted the facts leading to the instant application/appeal are that the petitioner/appellant being individual, had declared total income of Rs.41,286 under the self-assessment scheme on following pretexts:---

However, subsequently the petitioner/assessee's case was got examined thoroughly and the assessment was arrived at total income at Rs.7,00,473. On first appeal, inter alia, the CIT(A), Faisalabad had held that the appeal is within time and confirmed the annual letting value as adopted by the ITO. Finally, the first appellate authority reduced the cost of construction from Rs.200 to Rs.150 per sq. ft. Feeling further aggrieved on mixed questions of law and facts, the petitioner/appellant filed present Appeal No.ITA No.1318/LB I/DB/1988-89 for the assessment year 1986-87 on March 13,1989.

3. In order to invoke discretionary jurisdiction of this Tribunal, the counsel of the petitioner has raised 3 legal questions as referred to above. He mainly contended that assessment in his case had to be completed under section 59(1) of the Ordinance on or before 30-6-1987 as the petitioner had filed his return on 31-10-1986 for the period ended on 30-6-1986, therefore, the ITO's action was barred by time, in fact, the ITO had no authority to assessee under section 62 of the Ordinance after this stipulated period. This is a mixed question of law and fact. Regarding objection of positive evidence is also a mixed question of law and fact. The last objection raised about the issuance of notice under sections 13(1) and 13(2), is a pure question of law. We wonder that the DR has not provided with the relevant record nor he has furnished an accurate reply against the questions raised by the counsel of the petitioner. In fact on 17-5-1989, when the captioned appeal came up for hearing before us, the case was adjourned on the request of the DR as he had no record nor instructed properly by the Department. More-so, he had an idea that the Department is too filing an appeal before us against the impugned order dated 4-3-1987 passed by the learned CIT(A), Faisalabad.

4. Prima facie case has been made out for seeking relief in terms of stay order against the alleged recovery of Rs.1,24,228 which was added back under sections 13(1) and 1.3(2) of the Ordinance. The assessee's contentions apparently look forceful as there might have been violation of mandatory provisions of the Ordinance. The true criterion is to consider on which side the balance of inconvenience and not of convenience- would lie in case interlocutory injunction is refused. It is important to point out that, when the applicant for interlocutory injunction is able to show prima facie the existence of a right and its infringement injunction will issue only if the circumstances are such, that the object really is to avoid the comparative inconvenience or mischief which is likely to result from refusing it. In other words the inconvenience will be greater than that which is likely to arise from refusing it. As non-payment of the impugned tax demand may cause seriously not only on the petitioner as the warrant of arrest had already been issued but may also cause disturbances in that atmosphere of business area.

5. Keeping all these facts in view, we direct that the recovery of the tax demand at Rs.1,24,228 be stayed till the final adjudication of the assessee's appeal or the expiry of the period of three months from the date of this order, whichever is earlier. This Tribunal has already fixed petitioner's main appeal for final hearing on 17-6-1989 and this fact has also been taken down by the AC/DR on 20-5-1989.' This miscellaneous application succeeds to the extent hereinabove narrated.

M.BA./1716/T Order accordingly.