TMI Blog2019 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... he light of the discussion as aforesaid, after hearing the petitioner, within a period of four weeks from date of receipt of a copy of this Order - W.P.No.3849 of 2019 and W.M.P.No.4278 of 2019 - - - Dated:- 13-2-2019 - Dr. Anita Sumanth, J. For Petitioner: Mr.S.Sathiyanarayanan For Respondent: Mr.Jayapratap ORDER Mr.Jayapratap, learned counsel for the respondent takes notice on behalf of the respondent. By consent of both learned counsels, the writ petition is taken up for final disposal at the stage of admission. 2. The challenge in the present writ petition is to an order dated 25.01.2019 passed by the respondent dismissing the application for stay filed by the petitioner on 19.01.2019 and calling upon her to pay the disputed demand immediately. 3. The petitioner is an assessee who has suffered an order of income tax assessment dated 24.12.2018 in relation to assessment year 2016-17 under the provisions of the Income Tax Act, 1961 (in short 'Act'). A statutory appeal has been filed before the Commissioner of Income Tax (Appeals) on 22.01.2019 which is still to be taken up for hearing. 4. Parallelly, the petitioner had filed an applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Instructions/Circulars in regard to the manner of adjudication of stay petitions are issued by the Central Board of Direct Taxes (CBDT) for the guidance of the Departmental authorities. The one oft-quoted by the assessee is Office Memorandum F.No.1/6/69/-ITCC, dated 21.08.1969 that states as follows: '1. One of the points that came up for consideration in the 8th Meeting of the Informal Consultative Committee was that income-tax assessments were often arbitrarily pitched at higher figures and that the collection of disputed demand as a result thereof was also not stayed in spite of the specific provision in the matter in s. 220(6) of the IT Act, 1961. 2. The then Deputy Prime Minister had observed as under : .........Where the income determined on assessment was substantially higher than the returned income, say twice the latter amount or more, the collection of the tax in dispute should be held in abeyance till the decision on the appeal provided there were no lapses on the part of the assessees. 3. The Board desire that the above observations may be brought to the notice of all the Income-tax Officers working under you and the powers of stay of recovery in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of stay of demand should normally be taken by Assessing Officer/TRO and his immediate superior. A higher superior authority should interfere with the decision of the AO/TRO only in exceptional circumstances; e.g., where the assessment order appears to be unreasonably high-pitched or where genuine hardship is likely to be caused to the assessee. The higher authorities should discourage the assessee from filing review petitions before them as a matter of routine or in a frivolous manner to gain time for withholding payment of taxes. C. Guidelines for staying demand: i. A demand will be stayed only if there are valid reasons for doing so. Mere filing an appeal against the assessment order will not be a sufficient reason to stay the recovery of demand. A few illustrative situations where stay could be granted are: It is clarified that in these situations also, stay may be granted only in respect of the amount attributable to such disputed points. Further where it is subsequently found that the assessee has not co-operated in the early disposal of appeal or where a subsequent pronouncement by a higher appellate authority or court alters the above situation, the stay order may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded within 2 weeks of the receipt t hereof. Instances where there is undue delay in giving effect to appellate orders, or in deciding rectification applications, should be dealt with very strictly by the CCITs/CITs. 3. The Board desires that appropriate action is taken in the matter of recovery in accordance with the above procedure. The Assessing Officer or the TRO, as the case may be, and his immediate superior officer shall be held responsible for ensuring compliance with these instructions. 4. This procedure would apply mutatis mutandis to demands created under other Direct Taxes enactments also.' 10. Instruction 1914 was partially modified by Office Memorandum dated 29.02.2016 taking into account the fact that Assessing Officers insisted on payment of significant portions of the disputed demand prior to grant of stay resulting in extreme hardship for tax payers. Thus, in order to streamline the grant of stay and standardize the procedure, modified guidelines were issued which are as follows: '....... (A) In a case where the outstanding demand is disputed before CIT (A), the assessing officer shall grant stay of demand till disposal of first appeal on pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The matter has been reviewed by the Board in the light of feedback received from field authorities. In view of the Board s efforts to contain over pitched assessments through several measures resulting in fairer and more reasonable assessment orders, the standard rate of 15% of the disputed demand is found to be on the lower side. Accordingly. it has been decided that the standard rate prescribed in O.M. dated 29.2.2016 be revised to 20% of the disputed demand, where the demand is contested before CIT(A). Thus all references to 15% of the disputed demand in the aforesaid O.M dated 29.2.2016 hereby stand modified to 20% of the disputed demand. Other guidelines contained in the O.M. dated 29.2.2016 shall remain unchanged. These modifications may be immediately brought to the notice of all officers working in your jurisdiction for proper compliance.' 12. The Circulars and Instructions as extracted above are in the nature of guidelines issued to assist the assessing authorities in the matter of grant of stay and cannot substitute or override the basic tenets to be followed in the consideration and disposal of stay petitions. The existence of a prima facie case for which so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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