TMI Blog2017 (5) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances, for the reasons stated above, the impugned decision of the respondent no.2- Assessing Officer rejecting the stay application cannot be sustained and the same deserves to be quashed and set-aside. Assessing Officer is required to take appropriate decision on the stay application, as per the modified instruction dated 29th February 2016 and unless the case falls within Clause 4 [B](a) & (b), he is required to pass appropriate order on the stay application, granting stay on payment of 15% of the disputed demand. In case, the Assessing Officer is of the opinion that the case falls within Clause 4 [B](a) or (b), in that case, he is required to follow the procedure as observed hereinabove; more particularly, Clause 4 [B] where the Assessing officer is required to refer the matter to the administrative Principal CIT/CIT and thereafter, the Principal CIT/CIT to take appropriate decision. - Special Civil Application No. 5679 of 2017 - - - Dated:- 28-3-2017 - M. R. Shah And B.N. Karia, JJ. Mr B S Soparkar, Advocate for the Petitioner Mr Sudhir M Mehta, Advocate for the Respondent JUDGMENT ( Per : Honourable Mr. Justice M. R. Shah ) 1. Rule. Shri Sudh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent no. 2 and respondent no.1, the petitioner-assessee has preferred the present Special Civil Application under Article 226 of the Constitution for the aforesaid reliefs. 4. Shri B.S Soparkar, learned advocate for the petitioner has vehemently submitted that the impugned orders passed by the respondents are contrary to the Office Memorandum F. No. 404/72/93- ITCC dated 29th February 2016 issued by the Central Board of Direct Taxes. It is submitted by Shri Soparkar, learned advocate for the petitioner that the respondent no. 2 has rejected the said application of the petitioner and has directed to pay the entire amount of demand mainly on the ground that the petitioner-assessee has not deposited 15% of the disputed demand as predeposit, while submitting the said application. It is vehemently submitted that as such that is not the requirement either under the earlier instructions no. 1914 dated 21st March 1996 or the modified Instructions dated 29th February 2016. 4.1 It is submitted by Shri B.S Soparkar, learned advocate for the petitioner that as per modified instructions dated 29th February 2016, as and when assessee submits application for stay of the demand till disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter to the Assessing Officer to consider stay application of the petitioner afresh in light of amended instructions dated 29th February 2016. 5. Shri Sudhir Mehta, learned advocate appearing on behalf of the Revenue has tried to oppose the present petition. Shri Mehta has submitted that considering para-4 of the amended instructions dated 29th February 2016, the quantum/lump sum payment is required to be made by the assessee as pre-deposit for stay of demand disputed before the learned CIT [A]. It is submitted that therefore, the assessee is required to deposit 15% of the disputed amount as a pre-deposit at the time of submitting the stay application and/or before his stay application is considered by the Assessing Officer on merits. It is submitted that therefore, in the present case, as the assessee did not make any deposit; more particularly, 15% of the disputed demand, the respondent no. 2 is justified in rejecting the stay application and consequently, directing the assessee to pay 100% of the demand. 5.1 It is further submitted by Shri Sudhir Mehta, learned advocate appearing on behalf of the Revenue that even otherwise, considering Clause 4[B], only in a case where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as and when stay application is submitted by the assessee requesting to grant stay of demand till disposal of first appeal, it is for the Assessing Officer to pass appropriate order and grant stay of the demand till disposal of first appeal on payment of 15% of the disputed demand; unless the case falls in the category discussed in para [B] of Clause 4 of the modified instructions dated 29th February 2016. Considering the modified instructions dated 29th February 2016 as a whole, there is no such requirement of pre-deposit of 15% of the disputed demand either at the time of submitting stay application or before the stay application of the assessee is considered on merits. Clause 4 of the modified Instructions dated 29th February 2016 reads as under :- 4. In order to streamline the process of grant of stay and standardize the quantum of lump sum payment required to be made by the assessee as a pre-condition for stay of demand disputed before CIT [A], the following modified guidelines are being issued in partial modification of Instruction No. 1914 : [A] In a case where the outstanding demand is disputed before CIT (A), the assessing officer shall grant stay of demand ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer to consider the stay application in accordance with law and on merits, in light of the modified instructions dated 29th February 2016 and observations made by us in the present order. 8.2 In case, the Assessing Officer is of the view that any deviation from clause 4 [A] is warranted ie., if the Assessing Officer is of the opinion that case falls within parameters of Clause 4 [B](a) ie., the Assessing Officer is of the opinion that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount higher than 15% is warranted, in that case, the Assessing Officer is required to refer the matter to the administrative Principal CIT/CIT, who shall, after considering the relevant facts, decide the quantum/proportion of demand to be paid by the assessee as lump sum payment for granting a stay of the balance demand. In case the Assessing Officer is of the opinion that the case falls within the parameters of Clause 4 [B](b) of the modified instruction dated 29th February 2016 ie., if the Assessing Officer is of the view that the nature of addition resulting in the disputed demand is such that payment of lump sum amount lower than 15% i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication, granting stay on payment of 15% of the disputed demand. In case, the Assessing Officer is of the opinion that the case falls within Clause 4 [B](a) or (b), in that case, he is required to follow the procedure as observed hereinabove; more particularly, Clause 4 [B] where the Assessing officer is required to refer the matter to the administrative Principal CIT/CIT and thereafter, the Principal CIT/CIT to take appropriate decision. 8.5 Under the circumstances, the impugned order passed by the respondent no. 1 also deserves to be quashed and set-aside and the matter is required to be remanded to the respondent no. 2-Assessing Officer to consider the stay application afresh in accordance with law and on merits, considering the modified Instructions dated 29th February 2016 as well as observation made by us hereinabove. 9. In view of the above and for the reasons aforestated, the present writ petition succeeds in part. The impugned orders at Annexure A collectively passed by the respondent no. 1 and respondent no. 2 herein are quashed and set-aside. The matter is remanded to the Assessing Officer to pass appropriate order on the stay application submitted by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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