TMI Blog2020 (8) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos.7136, 7155 & 7411 of 2020 and WMP.Nos.8505, 8506, 13817, 8535, 8536, 13914, 8874, 8875 & 13782 of 2020 - - - Dated:- 21-8-2020 - HONOURABLE DR. JUSTICE ANITA SUMANTH For Petitioner : Mr. N.V. Balaji For Respondents : Mr. ANR Jayapratap, Standing Counsel COMMON ORDER For the reasons stated in the affidavit filed in support of the Miscellaneous Petitions filed seeking amendment of prayer in the Writ Petitions and there being no objection to the same by Mr. ANR. Jayapratap, learned Standing Counsel for the respondents, WMP Nos.13817, 1394 and 13782 of 2020 are ordered. 2. Heard Mr. N.V. Balaji, learned counsel for the petitioner and Mr. ANR. Jayaprathap, learned Standing Counsel for the respondents. By consent expressed by both learned counsel these matters are taken up for final disposal. 3. The petitioners challenge orders passed by the Assessing Officer and by the Principal Commissioner of Income Tax rejecting applications for stay of demand arising from the disputed orders of assessment passed under the provisions of the Income Tax Act, 1961 (in short Act ). 4. A perusal of the impugned orders would show that the orders are nonspeaking and mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 2-12-1993 from CBDT] The Board has felt the need for a comprehensive instruction on the subject of recovery of tax demand in order to streamline recovery procedures. This instruction is accordingly being issued in supersession of all earlier instructions on the subject and reiterates the existing Circulars on the subject. 2. The Board is of the view that, as a matter of principle, every demand should be recovered as soon as it becomes due. Demand may be kept in abeyance for valid reasons only in accordance with the guidelines given below : A. Responsibility: i. It shall be the responsibility of the Assessing Officer and the TRO to collect every demand that has been raised, except the following: (a) Demand which has not fallen due; (b) Demand which has been stayed by a Court or ITAT or Settlement-Commission; (c)Demand for which a proper proposal for write-off has been submitted; (d) Demand stayed in accordance with paras B C below. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to safeguard the interest of revenue; b. require the assessee to pay towards the disputed taxes a reasonable amount in lump sum or in instalments; c. require an undertaking from the assessee that he will co-operate in the early disposal of appeal failing which the stay order will be cancelled. d. reserve the right to review the order passed after expiry of a reasonable period, say up to 6 months, or if the assessee has not cooperated in the early disposal of appeal, or where a subsequent pronouncement by a higher appellate authority or court alters the above situations; e. reserve a right to adjust refunds arising, if any, against the demand. iii. Payment by instalments may be liberally allowed so as to collect the entire demand within a reasonable period not exceeding 18 months. iv. Since the phrase stay of demand does not occurring section 220(6) of the Income-tax Act, the Assessing Officer should always use in any order passed under section 220(6) [or under section220(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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of addition resulting in the disputed demand is such that payment of a lump sum amount higher than 15% is warranted (e.g. in a case where addition on the same issue has been confirmed by appellate authorities in earlier years or the decision of the Supreme Court /or jurisdictional High Court is in favour of Revenue or addition is based on credible evidence collected in a search or survey operation, etc.) or, (b) the assessing officer is of the view that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount lower than 15% is warranted (e.g. in a case where addition on the same issue has been deleted by appellate authorities 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the trinity , so to say, and are indispensable in consideration of a stay petition by the authority. The Board has, while stating generally that the assessee shall be called upon to remit 20% of the disputed demand, granted ample discretion to the authority to either increase or decrease the quantum demanded based on the three vital factors to be taken into consideration. 13. In the present case, the assessing officer has merely rejected the petition by way of a non-speaking order reading as follows: Kindly refer to the above. This is to inform you that mere filing of appeal against the said order is not a ground for stay of the demand. Hence your request for stay of demand is rejected and you are requested to pay the demand immediately. Notice u/s.221(1) of the Income Tax Act, 1961is enclosed herewith. 14. The disposal of the request for stay by the petitioner leaves much to be desired. I am of the categoric view that the Assessing Officer ought to have taken note of the conditions precedent for the grant of stay as well as the Circulars issued by the CBDT and passed a speaking order. Of course the petition seeking stay filed by the petitioner is itself c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of disputed tax and the case laws quoted by you are perused. However as per the Boards instruction no.1914, which is modified by Para 2 of the OM dated 31/07/2017 stay of disputed demand be granted if 20% of the same is paid and stay requested. Hence your request for permanent stay of recovery of disputed tax till the disposal of first appeal by the Commissioner of Income Tax (Appeal), Coimbatore is hereby rejected. You are requested to pay 20% of the demand outstanding immediately and file a fresh petition for the stay balance demand to avoid coercive action. SILUVAI ANTHONY JOSEPHINE MARY CORP WARD 3, CBE GOVERNMENT OF INDIA OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX-1 NO 63, RACE COURSE, COIMBATORE-641 018 C.No.117/PCII-I/CBE/AAECS7045N/2019-20 Dated: 09/03/2020 PROCEEDINGS OF THE PRINCIPAL COMMISSIONEROF INCOME TAX-1 COIMBATORE Present: Shri G.R.Reddy, Principal Commissioner of Income Tax-1 Coimbatore Sub: Stay of payment of tax in the case of Sahana Jewellery Exports Private Limited, 600 Raja Street, Coimbatore 641 001 AY:2016-17 PAN : AAECS7045N Reg. Ref: Assessee s Petition d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
