Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2011 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2011 (12) TMI 158 - HC - Income TaxWhether the first appellate authority, namely, CIT(Appeals) or DCIT (Appeals) have inherent power to grant stay and decide the stay application filed along-with appeal/s filed before them u/s 246/246A of Act respectively – appeal preferred u/s 246A - application for stay of entire disputed demand made u/s 220 (3) and 220 (6) – claim rejected and coercive measures taken - Held that:- First appellate authority, namely; DCIT (Appeals) or CIT (Appeals) have inherent, implied and ancillary powers to grant stay against the recovery of disputed demand of tax while seized of the appeal filed before them in accordance with Section 246 or 246A of the Act. Such inherent powers have to be inferred even in the absence of any specific statutory provision conferring the power to grant stay upon such authorities under the Act. Section 220(6) only give discretion to the Assessing Authority, not to treat the assessee in default and doesnot confer power to grant stay of demand. Therefore, such powers have to be exercised in accordance with Instruction No. 95 dated 21.08.1969. which states that where the income determined on assessment was substantially higher than the returned income viz. twice the later amount or more, the collection of the taxes in dispute to be held in abeyance till the decision of the appeals provided there was no fault on the part of the assessee. In present case , the main additions are trading additions on the basis of GP rates, the validity of which is subject matter of appeal before the C.I.T. (Appeals). Thus, this Court in view of Instruction No.95 dated 21.08.1969, would stay the recovery of entire balance amount from the assessee, while directing the C.I.T. (Appeals) to dispose of the pending appeal of the assessee within a period of six months from date of order. The attachment of bank accounts of the assessee already attached by the Assessing Authority are also be lifted. The assessee may also file stay application before the C.I.T. (Appeals), who may also consider such stay application on its own merits upon the relevant factors. Further, it is directed that first appellate authorities and assessing authorities would act in accordance with the said decision in the cases of other appellant assessees within the State of Rajasthan also. - Decided in favor of assessee.
|