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TMI Blog2018 (4) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... tay of collection of the demand of tax in respect of the assessment for the year 2011-12. The petitioner in their letter dated 25.01.2018, had pointed out that, as against the assessment order dated 30.11.2017, the petitioner has preferred appeal before the Commissioner of Income-tax (Appeals) 18, Chennai, and the prospects of winning the appeal is very high and there are no lapses on the part of the assessee to disclose all the material facts truly and fully; and the assessee is undergoing financial constraints; and if the demand is enforced, they will be put to undue hardship; and the assessment is a high pitched assessment; and therefore, prayed for stay of the entire demand till the disposal of the appeal by Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income-tax reported in [2017] 84 taxmann.com 14 (Mad.). 4. Mr.A.P.Srinivas, learned Senior Standing Counsel for the Revenue pointed out that the Assessing Officer has got no power to grant stay, and if the assessee is aggrieved, he should have filed an application before the Commissioner of Income Tax (Appeals), while filing the appeal against the assessment order dated 30.11.2017, and the Assessing Officer cannot grant unconditional stay, and he is bound by the instructions given by the CBDT, in this regard. The learned Senior Standing Counsel placed reliance on the decision of this Court in Paulsons Litho Works vs. Income-tax Officer reported in [1994] 76 TAXMAN 294 (MAD.) and the decision in J.Srinivasan vs. The Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate authorities, either in the nature, quality or extent or vis-a-vis the hierarchy. There can be no comparison on the same with each other, they being heterogeneous in nature. It was further, held that the power conferred on the ITO and the TRO cannot be considered to be either an effective substitute so as to render nugatory or destructive of the other. The undoubted power of an appellate authority to grant stay as an adjunct to its appellate jurisdiction, cannot be denied to such authority merely because another authority can grant somewhat similar result oriented relief, which is merely subjected to the process of coercive recovery for the realization of the tax or penalty under dispute. 8. Bearing the above distinction in mind, if w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the first respondent at various stages. However, the petitioner has not prayed for any stay in those appeals, because taxes have been remitted without prejudice. Thus, the petitioner has to necessarily move the first respondent by way of a stay petition, and if such petition is moved, then it is open to the first respondent to consider the prima facie case which the petitioner would place before the authority and take a decision on merits and in accordance with law. 11. In the light of the above, the impugned communication dated 07.02.2018, is directed to be kept in abeyance for a period of four weeks from the date of receipt of a copy of this order. Within such time, the petitioner is directed to file a stay petition before the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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