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TMI Blog2021 (8) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) which is pending adjudication under the Faceless Appeal Scheme, 2020; and d) issuance of a writ of certiorari quashing the Impugned Order No.2 dated December 21, 2020; and e) imposition of exemplary costs on Respondent No.1 for carrying out a blatantly illegal recovery of tax against the accepted principles of reasonableness, judicial discipline and law f) For ad-interim reliefs as the Court may deem fit; and g) For the costs of this Petition; h) Pass any other further order (s) / direction (s) as this Hon'ble Court may deem fit and proper in the fact and circumstances of the case. 3. On 03rd June, 2021, the learned predecessor Division Bench had passed the following order:- "CM APPL. 18229/2021 1. Allowed, subject to just exceptions. CM APPL. 18230/2021 2. The prayer made in the captioned application is to grant extension for filing the court-fee and notarised affidavits along with the present petition. The captioned application is disposed of with a direction to the petitioner to place on record the duly notarised affidavits and deposit the requisite court fee, within three days from the resumption of the normal and usual work pattern by this court. W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining demand of the assessee may kindly be stayed and the refund due in future may not be adjusted. 10. The demand of the assessee for A.Y. 2017-18 is already collected 40.21%. The assessee would not be treated as assessee in default for the remaining demand of A.Y. 2017-18 till the disposal of the first appeal of the assessee or 31.03.2022, whichever is earlier. It is further clarified that till then no further refund, if determined or due to the assessee would be adjusted against the demand." 5. Mr. Zoheb Hossain, learned counsel for the respondent states that in view of the aforesaid order dated 02nd July, 2021, the grievance raised in the present writ petition stands addressed and it should be disposed of as infructuous. 6. However, learned counsel for the petitioner submits that as per the binding directions issued by the CBDT, the respondent was obliged to grant a stay on recovery of outstanding demand for the Assessment Year 2017-18 to the petitioner upon recovery of 20%, as an appeal challenging the assessment order is pending adjudication before the Commissioner of Income Tax (Appeals). The relevant portion of the office memorandum dated 29th February, 2016, as ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h March, 2020 under Section 245 of the Act and order dated 21st December, 2020 granting conditional stay of demand are reproduced hereinbelow:- (A) Office memorandum dated 29th February, 2016 4(B) In a situation where, (a) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BDT O. M. F. No. 404/72/93-ITCDD dated 31.07.2017. 3. On perusal of the records, it is found that the assessee has filed an appeal before Ld CIT (Appeal), Delhi-19 which is pending for decision. The assessee has also paid Rs. 10,00,000/- and an amount of Rs. 3,79,51,268/- had been adjusted against refund of A.Y. 2019-20. More than 20% of the demand has already been recovered. 4. As per section 220(6), the assessing officer in his discretion and subject to such conditions as he may think fit to the circumstances of the case, treat the assessee is not being in default in respect of the amount in dispute in the appeal. Further as per section 220(3), an application made by the assessee before the expiry of due date under sub section (1), the assessing officer may extend the time of payment or allow payment in installments, subject to such conditions as he may think fit to impose in the circumstances of the case. 5. Thus, after considering of the facts of the case, as the assessee has deposited 10 lac and adjustment of refund of Rs. 3,79,51,268/- against the demand has been made which is more than 20% of the demand, thus it is a fit case for stay of demand till the disposal of app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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