TMI Blog2019 (8) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... -condition for deposit of any portion of the demand for consideration of the stay petition, it is not just and proper for this court to insist upon any such pre-condition for consideration of the stay petitions. Non-compliance of the conditions stipulated by the Assessing Authority will not in any manner preclude the appellants from approaching the Appellate Authority seeking stay of the demand, pending disposal of the appeal. Therefore we are inclined to allow the writ appeal and to modify the impugned judgments to the following terms- (i) There will be a direction to the 3rd respondent [CIT(A)] to consider and pass appropriate orders on Ext.P7 stay petitions filed by the appellants seeking stay of the recovery, pending disposal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay of the recovery, pending disposal of the appeals. The Assessing Officer had passed orders in all these cases directing for remittance of 20% of the demand, as a pre-condition for consideration of such applications, relying on a Memorandum issued by the Board (F.No.404/72/93-ITCC dated 31-07-2017). The appellants have not complied with the condition stipulated. Instead, they moved before the appellate authority under interim applications seeking stay of enforcement of the demand until disposal of the appeals. Since those applications were not considered, the appellants have approached this court invoking the jurisdiction vested under Article 226 of the Constitution of India. 3. The learned Single Judge while dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised by that authority independently. Whether a condition need to be imposed for granting stay pending disposal of the appeals, is a matter which is coming within the discretionary powers of the Appellate Authority. Since the statute does not insist on any such pre-condition for the purpose of consideration of the stay petition, the insistence made by the learned Judge is quite unreasonable and unsustainable, is the contention. Question whether any condition need to be imposed for granting stay, is a matter which need to be decided based on the prima facie remit of the appeal, which has to be appreciated by the Appellate Authority, is the argument. 5. On the other hand, learned Standing Counsel contended that, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore we are inclined to allow the writ appeal and to modify the impugned judgments to the following terms; ( i) There will be a direction to the 3rd respondent (Commissioner of Income Tax (Appeals) to consider and pass appropriate orders on Ext.P7 stay petitions filed by the appellants seeking stay of the recovery, pending disposal of the statutory appeals, at the earliest, after affording an opportunity of personal hearing to the appellants. At any rate, the stay petitions shall be disposed of within one month from the date of receipt of this judgment. ( ii) Till the disposal of the stay petitions as directed above, the demands impugned in the statutory appeals shall be kept in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
