JUDGMENT

Milind N. Jadhav, J. - By this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :-

"(a) This Hon''ble Court be pleased to declare the appropriation of Rs.3,11,206/- made by the T.R.O. towards the Tax demand of the A. Y. 1987-88 out of sum of Rs.6,00,000/- deposited with the Respondent by the Petitioner under the said High Court order dated 13/8/91 as illegal;

(b) This Hon''ble court be pleased to declare that the Petitioners are entitled for the benefit of the Kar Vivad Samadhan Scheme so far as they relate to the Tax dispute / Tax arrears of A.Y.1987-88.

(c) This Hon''ble court be pleased to set aside and or quash the Certificate of Intimation issued under Section 90 (1) of the Finance (No.2) Act, 1998 under Kar Vivad Samadhan Scheme Rules 1998, dated 26/2/99.

(d) This Hon''ble Court be pleased to issue Writ of Mandamus or any other writ or order in the nature of Mandamus against the Respondents directing them to consider the Petitioners'' case for Kar Vivad Samadhan Scheme and accord the benefit there under as may be applicable to the Petitioners.

(e) This Hon''ble court be pleased to direct the Respondents to adjust the illegally appropriated sum of Rs.3,11,206/- towards the tax liability if any fixed under the Kar Samadhan Scheme for the tax dispute / arrears of the A.Y. 1987-88.

(f) Pending the hearing and final disposal of the Petition the Respondents, their officers and their employees be restrained from recovering any amount from the Petitioners by way of tax, interest or penalty under the Income Tax Act, 1961 in respect of A.Y. 1987-88 pursuant to the letter dated 19-7-91 at Exhibit ''A'' to the Petition or under any further order.

(g) Ad-interim order in terms of prayer (f) may be granted.

(h) Such other and further relief as the nature and circumstances of this case may require may be granted."

2. This Court after hearing the matter on 17.10.2001 had passed the following interim order :-

"1. Heard. In the matter of Writ Petition No.2490 of 1991, this court issued the following order :

1. The Petitioners do pay to the Respondents a sum of Rs.6,00,000/- (Rupees Six Lakhs) in pursuance of the letter dated 19 th July, 1991 being Exhibit ''Q'' to the Writ Petition No.2492/91 and Exhibit ''H'' to the Writ Petition No.2493/91 in the manner following :-

a) Rs.50,000/- by a cheque, dt.15.8.1991.

b) Rs.5,50,000/- within 8 weeks from today.

2. The Respondents and / or Officers shall not take any proceedings for the recovery of the amounts mentioned in the letter, dated 19.7.1991 for a period of eight weeks;

3. If the said amount of Rs.6,00,000/- is paid within the period stipulated above, the demand notices in respect of the amounts mentioned in the letter dated 19 th July, 1991 are stayed till the hearing and final disposal of the quantum Appeal for the assessment year 1985 -86;

4. In default, the Respondents are at liberty to enforce the demand;

5. Petition to stand disposed off accordingly."

2. Mr. Kothari today submitted that these quantum appeals have been dismissed by the Tribunal on 28 th February 2001. As per submissions advanced by Mr. Kothari, the Respondents and their officers are recovering the said amount of assessment tax from the Petitioner and therefore Petitioner is making a prayer for a rule as well as rule nisi.

3. Mr. Chatterjee is also heard on behalf of the Respondents.

4. We issue the rule, returnable on 6 th November, 2001 with the intimation to the litigating parties that on that date this Writ Petition would be finally decided. The Respondents are permitted to file the affidavit in the meanwhile.

5. Rule issued in terms of prayer clauses (a) and (b). Interim relief in terms of prayer clause (f).

6. All concerned to act on the ordinary copy of this order, duly authenticated by the Court Associate."

3. At the outset, it may be necessary to advert to the relevant facts in the present case to decide the petition.

3.1 The petitioner