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2021 (10) TMI 1110 - KERALA HIGH COURTStay of demand - deposit of 20% of the total demand - HELD THAT:- Exts.P2 and P8 directing deposit of 20% of the total demand are both made by the Income Tax Officer and not by the Appellate authority. Petitioner has not yet moved any application for stay of the assessment order in the pending appeal, before the 2nd respondent. As rightly pointed out by the learned Standing counsel, the Appellate Authorities are not bound by any office memorandum issued by the department, since they are exercising adjudicatory powers and possess discretionary powers. In considering the grant of stay pending appeal, the High Court of Delhi had clearly observed in Turner General Entertainment Networks case [2019 (1) TMI 1365 - DELHI HIGH COURT] that while, the authorities concerned have to apply their mind to decide such applications and pass appropriate orders independent of the office memorandum. The judgment of the High Court of Kerala, produced as Ext.P9, stands on a different footing since, in that case, this Court had directed the consideration of the appeal without insisting on any deposit due to the peculiar nature of the facts involved in that case. Petitioner, if he is so advised, ought to move an appropriate application for stay before the Appellate Authority. If such an application is preferred, needless to say, the appellate authority shall pass appropriate orders within a period of two months from the date of receipt of such an application. Further, if the Appellate Authority feels it desirable to consider and pass orders on the appeal itself, liberty is granted to the Appellate Authority to do so.
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