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2019 (7) TMI 129 - HC - Income TaxStay of demand - recovery proceedings - maintainability of writ - respondent granted the petitioner three days time to pay at least 20% of the demand - HELD THAT:- Facts reveal that in the impugned order dated 25.10.2018 the third respondent granted the petitioner three days time to pay at least 20% of the demand and produce a copy of the challan to him. Thus, though the instruction provides for review before the PCIT, sufficient time was not granted to the petitioner. Not only that, the AO did not even wait for three days for the petitioner to comply with the directions issued by him and with undue haste, on the very next day that is, on 26.10.2018, recovered ₹ 8,27,80,220/- by way of adjustment from the refund payable to the petitioner while giving effect under section 254 in case of assessment year 2013- 14. Thus, since the Assessing Officer had started making recovery without giving any time till the application for review filed by the petitioner before the PCIT could be heard, the petitioner approached this court by way of this petition. Considering the conduct of the third respondent and the urgency of the matter, no fault can be found in the conduct of the petitioner in invoking the writ jurisdiction of this court. The third respondent, by his very conduct in not waiting for even three days in terms of the order passed by him and making coercive recovery, has created a situation which has compelled the petitioner to discard the remedy of review before the PCIT and approach this court for relief This petition under article 226 of the Constitution of India is maintainable. Exercise of discretion - Insofar as the contention that if the petitioner wants to avail of the benefit of the Instructions issued by the CBDT, it has to avail of the remedy before the PCIT and that the remedy under section 220(6) of the Act being discretionary, no jurisdictional question arises, is concerned, in the opinion of this court, when section 220(6) confers discretion upon AO while considering an application thereunder, it goes without saying that such discretion has to be exercised in a reasonable and proper manner. If the exercise of such discretion is arbitrary or capricious or suffers from the infirmity of non-application of mind, it is always open for the aggrieved person to knock the doors of this court. This contention therefore, does not merit acceptance. Petitioner has made out a strong case for grant of stay against recovery of the disputed amount. Considering the fact that the third respondent has already recovered an amount of ₹ 8,27,80,220/- by adjusting the refund due to the petitioner for assessment year 2013-14, no further recovery is warranted
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