TMI Blog2019 (4) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of mind of the officer to the existence of prima facie case, financial stringency and balance of convenience, there is a merit in the submission of the petitioner that the order requires to be set aside. I accordingly do so. The officer shall fix a date for hearing of the stay application, issue notice to the petitioner and pass orders in accordance with law, within a period of four weeks from the date of receipt of a copy of this order. Till the disposal of the said petition, no coercive proceedings shall be initiated as regards recovery of the disputed demand. - writ Petition is disposed - W.P. No.8301 of 2019 And W.M.P.No.8842 of 2019 - - - Dated:- 26-3-2019 - Dr. Justice Anita Sumanth For the Petitioner : Mr.S.Raveekumar For the Respondents : Mr.J.Narayanaswamy Senior standing counsel ORDER The petitioner challenges an order passed by the 1st respondent upon the stay application filed by the petitioner on 01.03.2019. 2.Mr.J.Narayanaswamy, learned senior standing counsel takes notice for the respondents. 3.By consent of both learned counsel and upon he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no personally opportunity has been granted and the order itself is mechanical and non speaking. As far as the third aspect is concerned, I have had occasion to deal with similar orders passed by assessing officers in my order dated 13.02.2019, passed in W.P.No.3849 of 2019. The relevant portion of the order below: '7. The parameters to be taken into account in considering the grant of stay of disputed demand are well settled the existence of a prima facie case, financial stringency and the balance of convenience. Financial stringency would include within its ambit the question of 'irreparable injury' and undue hardship as well. It is only upon an application of the three factors as aforesaid that the assessing officer can exercise discretion for the grant or rejection, wholly or in part, of a request for stay of disputed demand. 8. In addition, periodic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. Where demand in respect of which a recovery certificate has been issued or a statement has been drawn, the primary responsibility for the collection of tax shall rest with the TRO. iii. It would be the responsibility of the supervisory authorities to ensure that the Assessing Officers and the TROs take all such measures as are necessary to collect the demand. It must be understood that mere issue of a show cause notice with no follow-up is not to be regarded as adequate effort to recover taxes. B. Stay Petitions: i. Stay petitions filed with the Assessing Officers must be disposed of within two weeks of the filing of petition by the tax- payer. The assessee must be intimated of the decision without delay. ii. Where stay petitions are made to the authorities higher than the Assessing Officer (DC/CIT/CC), it is the responsibility of the higher authorities to dispose of the petitions without any delay, and in any event within two weeks of the receipt of the petition. Such a decision should be communicated to the assessee and the Assessing Officer immediately. iii. The decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 220(6) of the Income-tax Act, the Assessing Officer should always use in any order passed under section 220(6) [or under section 220(3) or section 220(7)], the expression that occurs in the section viz., that he agrees to treat the assessee as not being default in respect of the amount specified, subject to such conditions as he deems fit to impose. v. While considering an application under section 220(6), the Assessing Officer should consider all relevant factors having a bearing on the demand raised and communicate his decision in the form of a speaking order. D. Miscellaneous: i. Even where recovery of demand has been stayed, the Assessing Officer will continue to review the situation to ensure that the conditions imposed are fulfilled by the assessee failing which the stay order would need to be withdrawn. ii. Where the assessee seeks stay of demand from the Tribunal, it should be strongly opposed. If the assessee presses his application, the CIT should direct the departmental representative to request that the appeal be posted within a month so that Tribunal s order on the appeal can be known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities in earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of the assessee, etc.), the assessing officer shall refer the matter to the administrative Pr. CIT/ CIT, who after considering all relevant facts shall decide the quantum/ proportion of demand to be paid by the assessee as lump sum payment for granting a stay of the balance demand.' 11. Instruction 1914 was further modified by Office Memorandum bearing number F.No.404/72/93 ITCC dated 31.07 2017 as follows: 'OFFICE MEMORANDUM F. No. 404/72/93-ITCC dated 31.07.2017 Subject: Partial modification of Instruction No. 1914 dated 21.3.1996 to provide for guidelines for stay of demand at the first appeal stage. Reference: Board s O.M. of even number dated 29.2.2016 Instruction No. 1914 dated 21.3.1996 contains guidelines issued by the Board regarding procedure to be followed for recovery of outstanding demand, including procedure for grant of stay of demand. Vide O.M. N0.404/72/93-ITCC dated 29.2.2016 revised guidelines were issued in partial modification of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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