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TMI Blog2016 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... amount due for the assessment year 2012-13. The contention of the learned counsel for the petitioner is that the petitioner has already filed an appeal against the assessment order passed by the assessing authority in relation to the assessment year 2012-13 and has also filed an application for the grant of interim stay against the assessment order. The appeal as well as interim stay application are pending before the C.I.T. (Appeals) i.e. respondent no. 2. Referring to Section 220 (6) of the Income Tax Act, 1961, it is argued that since the assessee has preferred an appeal against the assessment order, it is not open to the authorities to proceed with the recovery pursuant to the assessment order once the appeal is pending. This argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority not to entertain any interim stay application leaving the matter open to be dealt with by the assessing authority during the course of pendency of appeal, inter alia, by establishing his due co-operation in the pending appeal or pointing out the failure on the part of the appellate authority to decide the appeal despite his cooperation. The intention of the statute is very clear to the extent that an assessee during pendency of an appeal has primarily to satisfy the assessing officer under Section 220(6) at the first instance for seeking deferment as regards the execution of an assessment order. In the present case, the petitioner admittedly has filed an appeal alongwith an application for interim stay but the fact remains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read as incidental or ancillary to its appellate jurisdiction. The situation in the present case is different inasmuch as during pendency of an appeal under Section 246 or 246-A, the power of interim stay instead of being conferred upon the appellate authority is rather, vested with the assessing officer by virtue of Section 220 (6). The power conferred on the assessing officer in view of the aforesaid provision by its very nature, is discretionary but at the same time it is to be read so long as an appeal remains pending or undisposed of by the appellate authority under Section 246 or 246-A of the Act. The assessee, in such a situation, is left with no other remedy except to approach the assessing officer for the exercise of his discret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in accordance with law but at the same time it is found that the petitioner has not brought any material whatsoever to the knowledge of the assessing authority. Although the petitioner has also made a reference to some circulars issued by CBDT but the same are not filed before the Court nor before the assessing authority, therefore, the Court has no choice except to interpret the intention of legislation from its plain reading. In civil disputes Order XLI Rule 5 and 6 Code of Civil Procedure, 1908 specifically confer jurisdiction on the appellate court or the court passing the decree for stay of orders/decree appealed against or for imposing conditions to secure the ends of justice. The benefit of Section 144 CP.C. is also available to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and law laid down by the apex court in the case of Assistant Collector of Central Excise v. Dunlop India Ltd. (1985) 154 ITR 172 and the judgements reported in AIR 1956 All. 130: Goverdhan Lal Jagdish Kumar v. Commissioner of Income Tax and others; AIR 1957 Andhra Pradesh 114:Vetcha Sreeamamurthy v. Income Tax Officer and another and AIR 1957 Andhra Pradesh 671: Shrimathi Mokhamatla Mondamma and another v. Shrimathi Mokhamatla Venkatalakshmidevi, we are not in agreement with the proposition of law as has been canvassed by the learned counsel for the petitioner in the writ petition. It is, however, open to the CBDT to issue guidance to the assessing authority to deal with the matters, during pendency of the appeals filed under Section 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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