TMI Blog2005 (1) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Act, 1961, read with section 194H. The stay was granted by the Tribunal vide order dated 18th March, 2003 subject to certain conditions. The appeal of the assessee was listed for hearing on 10th June, 2003 but the hearing was adjourned from time to time even though the assessee never sought any adjournment on any of the dates. The said stay expired in September, 2003. The assessee made another application on 5-11-2003 for extension of the stay and the Bench extended the stay for 6 months from the date of the order vide order sheet entry dated 17-11-2003. The said stay was further extended for another six months vide order dated 2nd June, 2004. This stay expired on 28th November, 2004. Since the appeal could not be disposed of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relating to the subject matter of appeal including the power of granting stay of recovery of the disputed demand and refund of the tax recovered by the revenue authorities". It has been further held "The Assessing Officer is precluded from taking coercive action for recovery of the disputed demand until the expiry of the period of limitation allowed for filing the appeal against the decision of the first appellate authority and also during the pendency of stay application before any revenue authority or the Tribunal". In view of the same, it has been prayed that the disputed demand be stayed and the Assessing Officer be directed not to encash the draft obtained by him from the bank under section 226(3) of the Income-tax Act and in case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pendency of stay application. No doubt, in the above case, the assessee had filed appeal and stay application before the expiry of time allowed for filing the appeal but that fact is not relevant while granting stay. The position would have been different if the department had recovered the amount before making application. But, once the application was made and listed for hearing, the Assessing Officer was not justified in recovering the amount under section 226(3) on 6-1-2005 particularly when hearing was listed on 7-1-2005. The hurried action of Assessing Officer in recovering on 6-1-2005 indirectly shows that recovery was deliberately to frustrate the process of stay before the Tribunal. Therefore, considering the peculiar facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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