JUDGMENT
P.G. Agarwal, J.
1. Heard Dr. A. K. Saraf, the learned senior advocate appearing for the petitioner, and Mr. U. Bhuyan, learned counsel for the respondent-Income-tax Department.
2. In respect of an assessment order dated December 27, 2002, computing the tax liability to the tune of Rs. 84,10,320, the petitioner filed an appeal before the Commissioner of Income-tax and thereafter he approached the Income-tax Appellate Tribunal challenging the said order of assessment of the appellate authority. The matter is still pending before the Appellate Tribunal. In the meantime, the Tax Recovery Officer issued a certificate that the total amount of tax due is Rs. 1,17,74,448. The petitioner approached the Tax Recovery Officer for allowing him to pay the amount in instalments of Rs. 5,000 per month whereby the Tax Recovery Officer allowed instalment of Rs. 10,000 per month and the petitioner was paying the said instalments. Subsequently, vide impugned order dated February 27, 2004, the petitioner was directed to pay a sum of Rs. 25 lakhs instantly and another sum of Rs. 25 lakhs by March, 2004, and the petitioner has challenged the said order in this writ petition. The impugned order reads as follows :
“F. No. G-683/2003-04/TRO-4/Ghy/2314, dated 27-2-2004
To
The Principal Officer,
M/s. Gangabani Mercantile and Finance (P.) Ltd.
C/o. Hotel Bluemoon, Uzanbazar, Ghy.
Sub : Arrear demand-Block period 1988-89 to 1998-99-Matter regarding.
Sir,
Kindly refer to the above.
I have been directed by the Additional Commissioner of Income-tax, Range-4, Guwahati, to collect at least 50 per cent, of arrear demand in addition to monthly instalment granted earlier by March, 2004, since the monthly instalment granted to you vide this office letter dated October 20, 2003, is too low.
As such I request you to pay Rs. 25,00,000 (rupees twenty five lakhs) right now and another Rs. 25,00,000 (rupees twenty five lakhs) by March, 2004. Necessary challan for this purpose duly sealed and signed by me may be collected from the office of the undersigned.
Please note that in case of failure I shall be constrained to take recovery measures as per various provisions of Sections 222 to 232 of the Income-tax Act, 1961, and also as per Second Schedule to the Income-tax Act, 1961.
Hope you will co-operate in the matter.
Yours faithfully, (Sd.) S. R. Dutta,
Tax Recovery Officer-4, Guwahati.”
3. The challenge has been made on the ground that under Section 225/226 of the Income-tax Act, the Tax Recovery Officer is the competent authority to grant instalments and he being a quasi-judicial authority, he cannot be directed by the Additional Commissioner of Income-tax or any other superior officer in the matter of realisation of the tax due and as such the impugned order is bad.
4. Learned counsel for the petitioner has placed reliance on the observations of the apex court in the case of Orient Papers Mills Ltd. v. Union of India, AIR 1969 SC 48. The apex court held as follows (page 51) :
“If the power exercised by the Collector was a quasi judicial power–as we hold it to be–that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the Department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause ; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments ; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party.”
5. In view of the contents of the impugned order as quoted above, we find that the Tax Recovery Officer had passed the impugned order at the direction of the Additional Commissioner of Income-tax and hence it cannot be maintained. The impugned notice dated February 27, 2004, is therefore, set aside. Mr. Bhuyan, learned counsel for the respondent, has submitted that in this case the petitioner has not prayed for stay of the realisation of the amount before the Tribunal and considering the huge arrears, the instalments of Rs. 10,000 is a petty amount.
6. We do not propose to enter into the above aspect at this stage but leave the matter to the Tax Recovery Officer to decide the entire matter independently and without being biased or prejudiced or influenced by any directions of the Additional Commissioner of Income-tax henceforth.
7. At this stage learned counsel for the petitioner has submitted that once the Tax Recovery Officer has been directed by the Additional Commissioner of Income-tax, the petitioner may not get any relief.
8. The petitioner will be at liberty to approach the Income-tax Appellate Tribunal for relief, if any, in the matter as the appeal is still pending there. The writ petition stands disposed of.