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2018 (4) TMI 609

s pending in appeals for the earlier assessment years and those appeals are pending 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. - 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 pet .....

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any stay of the entire demand, but directed the petitioner to pay 20% of the disputed demand. This communication is impugned in the present writ petition. 2. Mr.R.Sivaraman, learned counsel appearing for the petitioner submitted that the second respondent ought to have applied his mind to the points raised by the 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 .....

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fully perused the materials placed on record. 6. The first question is whether the petition filed before the second respondent/Assessing Officer could be treated as a stay petition in the normal sense, as popularly known. The answer to the above question should be in the negative, because the provisions 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 de .....

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ion to entertain a prayer from the assessee not to treat him as an assessee in default. As pointed out in the case of Paulsons Litho Works (referred supra), the power of stay confers on the appellate authority cannot be equated to the power granted to the Assessing Officer under Section 220(6) of 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 rep .....

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