TMI Blog2018 (4) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... tition, 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. 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 first respondent in the pending appeal dated 25.01.2018, and such stay petition shall be heard on merits - W.P.No.3338 of 2018 and W.M.P.Nos.4080 & 4081 of 2018 - - - Dated:- 4-4-2018 - T. S. Sivagnanam, J. For the Petitioner : Mr.R.Sivaraman For the Respondents : Mr.A.P.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner in their letter dated 25.01.2018, and without affording an opportunity of personal hearing, the impugned order could not have been passed. It is submitted that the instructions given by the Central Board of Direct Taxes (for brevity CBDT ) in Office Memorandum dated 29.02.2016, guidelines have been issued to the authorities as to how prayer for stay should be dealt with. 3. Further, it is submitted that the said circular was interpreted by the Hon'ble Division Bench of the High Court of Delhi in Virgin Mobile India (P) Ltd., vs. Assistant Commissioner of Income-tax reported in (2012) 25 taxmann.com 566 (Delhi) and it was pointed out that the instructions issued by the CBDT only reinforce the element of discretion and by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income Tax Act, 1961 does not specifically provided for a power with the Assessing Officer to grant stay of his own assessment order on the ground that an appeal has been preferred against the assessment order. However, the Assessing Officer is empowered to pass appropriate orders, not to treat the assessee as a defaulter by considering the facts and circumstances placed before it. This distinction was succinctly brought out in the decision in the case of Paulsons Litho Works (referred supra). It was pointed out that the Act confers power on the ITO under Section 220(6) to treat the assessee concerned is not in default, during the pendency of an appeal under Section 246 or upon the TRO, under Section 225(1), to grant further time or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act. It is no doubt true that the Assessing Officer should first consider the petitioner's request for stay of the demand as referred to in the instructions/guidelines issued by the CBDT and directed 20% of the demand to be paid. The second respondent did not afford an opportunity of personal hearing. 9. In my considered view, the impugned communication dated 07.02.2018, cannot be treated to be an order, as it appears to be a reply given to the petitioner's request for grant of stay of the entire demand. On facts, this Court finds that the petitioner has not filed a stay petition before the Commissioner of Income Tax (Appeals), while filing the appeal on 25.01.2018. It is not known as to why the petitioner has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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