TMI Blog2022 (2) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the order dated 17.12.2021 are not appealing to us at all. The matter has not been considered by the respondent No.2 in its proper perspective. Many times in the over zealousness to protect the interest of the Revenue, the authorities render their discretionary orders susceptible to the complaint that those have been passed without any application of mind. We fail to understand what is so magical in the figure of 20%. To balance the equities, the authority may even consider directing the assessee to make a deposit of 5% or 10% of the assessed amount as the circumstances may demand as a pre-deposit. The High Pitched Assessment means where the income determined and assessment was substantially higher than the returned income. For example, twice the returned income or more. The exercise of discretion is essentially the discernment of what is right and proper; and such discernment is the critical and cautious judgment of what is correct and proper by differentiating between shadow and substance as also between equity and pretence. A holder of public office, when exercising discretion conferred by the statute, has to ensure that such exercise is in furtherance of accomplish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh. Such powers could not be intended to be drained out or rendered meaningless, if the power to grant stay against the recovery of disputed demand is to be taken away from the first appellate authority. Such implied, necessary and inherent power must necessarily be read into these provisions conferring the powers upon the appellate authority to modify the impugned assessment order in any manner. In specific terms, the first appellate authority can even enhance the taxable income, while he has the power to reduce or completely set at naught the assessment. The words as he thinks fit in Section 251 (1) (C) are not redundant, as no such redundancy can be attributed to the Parliament. Therefore, mere absence of words power to grant stay in Section 251 of the Act cannot mean that such powers are specifically excluded from the jurisdiction of the first appellate authority. - R/SPECIAL CIVIL APPLICATION NO. 19804 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 19808 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 19815 of 2021 - - - Dated:- 4-1-2022 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE Appearance: MR ABHISHEK M MEHTA(3469) f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pre-deposit in the facts of the present case. (B) Your Lordship may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned demand notices all dated 30.09.2021 for the years 2010-11 to 2020-21. (C) Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondent No.2 to consider the request of the petitioner and not to insist on any predeposit for considering the stay of the recovery of the amount which is subject matter of appeal before the Respondent No.3. (D) Pending hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation and execution of the impugned order dated 8.12.2021 and 15.12.2021 passed by the Respondent No.2 and the demand notices all dated 30.09.2021 and to grant waiver of pre-deposit in the facts of the present case. (E) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents including the Respondent No.2 or the other respondent authorities und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.09.2021. 7.4 The respondent No.4 proceeded to assess the income of the writ applicant by way of separate assessment orders dated 30.11.2021 for the A.Y.2010-11 to 2020-21 under Section 153(A) read with Section 143(3) of the Act followed by the notice of demand dated 30.09.2021 issued under Section 156 of the Act. The assessment orders passed by the respondent No.4 for A.Y.2010-11 to 20202021 came to be challenged by the writ applicant by filing appeals before the Commissioner of Income Tax (Appeals) under Section 246 of the Act. 7.5 The chart indicating the total demand raised and the 20% of the total demand as pre-deposit in all the three captioned writ applications is as under; S.C.A. No.19804 of 2021 TOTAL DEMAND RAISED 20% OF THE TOTAL DEMAND AS PRE-DEPOSIT FOR GRANT OF STAY AGAINST RECOVERY. ₹ 373,20,42,319/- (Rs. Three Hundred Seventy Three Crores Twenty Lakhs Forty Two Thousand Three Hundred Nineteen Only) ₹ 74,64,08,464/- (Rupees Seventy Four Crores Sixty Four Lakhs Eight Thousand Four Hundred Sixty Four Only) S.C.A. No.19815 of 2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n your case as tabulated below; Sr. No. Order under section of I.T.Act, 1961 A.Y. Dt. of order Assessed Income (In Rs.) Demand Raised (in Rs.) 1. 153A r.w.s.143(3) 2010-11 30.09.2021 32756550 26424810 2. 153A r.w.s. 143(3) 2011-12 30.09.2021 180252060 139387164 3. 153A r.w.s.143(3) 2012-13 30.09.2021 56353980 25290654 4. 153A r.w.s.143(3) 2013-14 30.09.2021 276756870 186990485 5. 153A r.w.s.143(3) 2014-15 30.09.2021 222850340 133940038 6. 153A r.w.s.143(3) 2015-16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer is working), or iii) If the high Court having jurisdiction has adopted a contrary interpretation but the Department has not accepted that judgment. 4. After studying the facts of your case, it is seen that your case does not fall in any of the above categories. Assessment order passed in your case by the Assessing Officer (A.O.) for the year under consideration was after granting sufficient opportunities during the assessment proceedings and the A.O. after duly perusing and verifying the submissions made by you with details available on record and proper appreciation of details provided as well in view of relevant provisions of the Act had passed the Assessment Order. Hence, demand cannot be stayed specially in view of the fact that this instruction has been issued in supersession of all instruction of the subject. Though the demand is disputed but mere filing of 1st appeal before the CIT (A) cannot be valid reason for granting stay. 5. However, following the principle of natural justice, I am directed to give you an opportunity to be heard that why your stay application should not be rejected as you have not paid 20% of the above mentioned raised demand in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) whichever is earlier. 6. In this regard, I am directed to request you to submit your compliance in accordance of the details asked in para 5 above on or before 15.12.2021 by 11:30 AM, failing which your stay petition dated 08.11.2021 shall be rejected. 7.8 Thus, the writ applicant was asked to adhere to the scheduled payment as contained in Para-5 aforesaid. The writ applicant was also asked to submit his compliance of the above scheduled payment on or before 15.12.2021, failing which, the stay application would stand rejected. To the aforesaid, the writ applicant filed his reply dated 15.12.2021 stating as under; To, The Principal Commissioner of Income Tax (Central Circle), 5th Floor, Aayakar Bhavan, Majura Gate, Surat, Respected Sir, Sub: Submission in connection with compliance to application for stay against recovery of demand raised u/s. 153A r.w.s. 143(3) 143(3) of the Act for A.Y.2010-11 to A.Y.2020-2021. Ref: ITBA/COM/F/17/2021-22/1037618617(1) dt. 08.12.2021. PAN:ASGPS8965A High pitch assessment was framed u/s. 153A r.w.s.143(3) of the Act on 30.09.2021 by the Deputy Commissioner of Income Tax, Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal before first appellate authority. 2. Only Source of Income of Avani Petrochem Pvt. Ltd. The assessee is a director of Avani Petrochem Pvt. Ltd and the only source of income of the assessee is Avani Petrochem Pvt. Ltd. The approx. turnover of Avani Petrochem Pvt. Ltd for F.Y.2020-21 is of ₹ 125 Crore and therefore, it is apparent that income assessed for A.Y.2010-11 to A.Y.2020-21 to the tune of ₹ 408 Crore, which his 4 times higher than the aggregate turnover, seems to be unrealistic and unreasonable. 3. Stereo-type order Looking at the whole assessment, it seems that the assessing officer has passed stereo-type order with outright rejection of the stand of the assessee which is absolutely illegitimate. 4. Adverse impact on financial affairs on account of COVID-19 Due to COVID-19 pandemic, the financial affairs of the business are adversely affected across the globe. The assessee has also faced countless barriers during last 2 years. The assessee is trying to come out from it, however, recovery proceedings may again affect the assessee very badly. Sir, in brief, it is practically very difficult for the assessee to pay hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove captioned subject, you have submitted reply to this office on 15.12.2021 in response to the letter issued to you dated 08.12.2021 for the necessary compliance called for on your stay petition dated 08.11.2021 which was scheduled for hearing on 15.12.2021 in this office at 12:30 PM. Vide the letter dated 08.12.2021 you were requested to pay the 20% of the outstanding demand in your case in easy installments in order to grant stay from the recovery of balance outstanding demand in accordance with the Board s Instruction No.1914 F.No.404/72/93 ITCC dated 21.03.1996 and further modified with Instruction No.1914 dated 31.03.2017. However, you have shown your disagreement to pay the 20% of the demand raised in your case quoting the reasons discussed below:- (i) High Pitched Assessment:- Assessee has taken the contention that during the assessment proceeding for the year under consideration, the DCIT, Central Circle-2, Vadodara (AO) had made high pitched assessment in arbitrary manner and biased mind without considering the submissions/explanation and justification of the assessee. (ii) Only source of income of M/s. Avani Petrochem Pvt. Ltd.- Assessee has taken the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient reason to stay the recovery of demand. A few illustrative situation where stay could be granted are:- i) if the demand in dispute relates to issues that have been decided in assessee s favour by an appellate authority or court earlier; or ii) If the demand in dispute has arisen because the Assessing Officer had adopted an interpretation of law in respect of which there exist conflicting decisions of one or more High Courts (not of the High Court under jurisdiction the Assessing Officer is working), or iii) If the high Court having jurisdiction has adopted a contrary interpretation but the Department has not accepted that judgment. 5. Hence, demand cannot be stayed especially in view of the fact that this instruction has been issued in supersession of all instruction of the subject. Though the demand is disputed but mere filing of 1st appeal before the CIT(A) cannot be a valid reason for granting stay. Therefore, your request to grant stay on the entire amount of outstanding demand in your case for the relevant years under consideration is not found to be valid in nature. 6. In view of above reasons, your stay petition dated 08.11.2021 cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e schedule payment as mentioned in above table then no action will be taken to recover the remaining demand till the end of the financial year or receipt of decision of CIT(A) whichever is earlier. 6.2 If no compliance of tax payment is received from you as scheduled above, then you would be treated as assessee deemed to be in default and the AO would be within his rights to make all possible recovery proceedings as per I.T. Act 1961 against you to collect the outstanding demand. 6.3 Your stay application is accordingly disposed off. Charanjeet Singh Gulati PCIT (Central), Surat Copy to:- 1. The Addl. CIT, Central Range, Vadodara for monitoring the payment of demand. 2. The DCIT, CC-2, Vadodara for recovery proceeding if payment schedule of demand is not followed. Charanjeet Singh Gulati PCIT (Central), Surat 7.12 Being dissatisfied with the aforesaid, the writ applicant is here before this Court with the present writ application. Submissions on behalf of the writ applicant:- 8. Mr. Tushar Hemani, the learned counsel appearing for the writ applicant vehemently submitted that the two impugned orders dated 8.12.2021 and 17.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred and relied upon an office letter dated 08.12.2021 providing guidelines for staying the demand. The argument of Mr. Hemani is that the respondent No.2 has looked into only one such letter for being guided as regards the stay of demand. He would argue that the error on the part of the respondent No.2 is writ large as reflected in para-5 of the impugned order wherein it is stated that the office letter dated 08.12.2021 supersedes all earlier instructions issued by the CBDT on the subject. This, according to Mr. Hemani, is something erroneous. 13. Mr. Hemani took us through the various circulars and notifications on the subject. He invited our attention first to the Instruction No.96 dated 21.08.1969. Thereafter, he took us through the Instruction No.1914 dated 02.12.1993 followed by the office memorandum dated 29.02.2016 and 31.07.2017 respectively and also the Circular No.14 (XL35) of 1995 dated 11.04.1995. Mr. Hemani would submit that to ignore all the aforesaid circulars and notifications and stick only to one office order dated 08.12.2021 was a big mistake on the part of the respondent No.2. 14. Mr. Hemani brought to our notice that the assessment order has been ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) That the respondent No.4 has made replication/ duplication leading to dual addition in several transactions which has led to the assessment going more than 100 times the returned income. The recovery sought to be made by way of the assessment orders is nothing but inflated transactions which have no basis in law. (viii) That the petitioner has negative income/losses and a copy of the unaudited/provisional profit and loss and balance sheet showing loss to the extent of ₹ 4 Crores up till 31.03.2021 is annexed hereto and marked as Annexure-K. (ix) That the entire conclusion had been drawn by the respondent No.4 on the basis of material seized from the one Ashwinbhai which was in the form of a diary wherein rough notes were maintained. The said Ashwinbhai Shah also filed an affidavit with the respondent No.4 stating that the said rough scribbles had no connection with the actual transactions. Such being the situation, the respondent No.4 did not even bother to take the statement of said Ashwinbhai Shah nor put him for cross examination during the entire proceedings. Solely on the basis of unsubstantiated notes which has led to the huge additions in the assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nn.com339 (Madras) 16. In such circumstances, referred to above, Mr. Hemani prays that there being merit in his writ application, the same may be allowed and the precondition of deposit of 20% of the total demand may be waived or stayed till the final disposal of the appeal which has been filed by the writ applicant before the Commissioner of Appeals under Section 251 of the Act. Submissions on behalf of the Revenue:- 17. On the other hand, Mr. M.R. Bhatt, the learned senior counsel appearing for the Revenue has vehemently opposed this writ application submitting that no error, not to speak of any error of law, could be said to have been committed by the respondent No.2 in declining to waive 20% of the pre-deposit amount in exercise of his discretion under Section 220(6) of the Act. 18. Mr. Bhatt would submit that the respondent No.2 could be said to have passed the impugned order of grant of conditional stay by keeping in mind all the relevant considerations and once such an order is passed in exercise of his discretionary power, this Court, in exercise of its writ jurisdiction, should be loath to interfere with the same. Mr. Bhatt would argue that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties and having gone through the materials on record, the only question that falls for our consideration is whether the writ applicant is entitled to any relief as prayed for in the present writ application. 23. Section 220 lays down the procedure for collection and recovery of the tax. Section 220 falls in Chapter-XVII. 24. Sub-section (3) of Section 220 reads thus; (3) Without prejudice to the provisions contained in sub- section (2), on an application made by the assessee before the expiry of the due date under sub- section (1), the Assessing Officer may extend the time for payment or allow payment by installments, subject to such conditions as he may think fit to impose in the circumstances of the case. 25. Sub-section (4) of Section 220 reads thus; (4) If the amount is not paid within the time limit under sub- section (1) or extended under subsection (3), as the case may be, at the place and to the person mentioned in the said notice the assessee shall be deemed to be in default. 26. The plain reading of sub-section (4) as above would indicate that if the amount is not paid within the time limit under sub-section (1) or within the extended time limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner. 29. The aforesaid leads us to consider what parameters should be kept in mind by the authority concerned while considering the request of the assessee for stay of the demand. For the time being, we put aside all the instructions and circulars issued by the CBDT over a period of time. Undoubtedly, all such instructions and circulars are in the form of guidelines which the authority concerned is supposed to keep in mind. Such instructions/ circulars are issued to ensure that there is no arbitrary exercise of power by the authority concerned or in a given case, the authority may not act prejudicial to the interest of the Revenue. However, when it comes to grant of a discretionary relief like stay of demand, it is but obvious that the four basic parameters need to be kept in mind (i) prima facie case (ii) balance of convenience (iii) irreparable injury that may be caused to the assessee which cannot be compensated in terms of money and (iv) whether the assessee has come before the authority with clean hands. 30. The power under Clause (6) of Section 220 is indeed a discretionary power. However, it is one coupled with a duty to be exercised judiciously and reasonably (as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. v. C. Balakrishnan [1959] 37 ITR 267 (Cal) . The learned Judge states (at pages 269 and 270): A judicial exercise of discretion involves a consideration of the facts and circumstances of the case in all its aspects. The difficulties involved in the issues raised in the case and the prospects of the appeal being successful is one such aspect. The position and economic circumstances of the assessee is another. If the officer feels that the stay would put the realisation of the amount in jeopardy, that would be a cogent factor to be taken into consideration. The amount involved is also a relevant factor. If it is a heavy amount, it should be presumed that immediate payment, pending an appeal in which there may be a reasonable chance of success, would constitute a hardship. The Wealth-tax Act has just come into operation. If any point is involved which requires an authoritative decision, that is to say, a precedent, that is a point in favour of granting a stay. Quick realisation of tax may be an administrative expediency, but by itself it constitutes no ground for refusing a stay. While determining such an application, the authority exercising discretion should not act in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn for the accounting period, that is 01.04.2011 to 31.03.2012 for the assessment year 2012-2013 as ₹ 4,91,680/- including agricultural income of ₹ 45,00,000/-. But, the respondent having formed adverse opinion, as set out in the assessment order dated 31.3.2015, negativing agricultural income, made additions to the tune of ₹ 55,00,000/-. Thereby, adding admitted income of ₹ 4,91,680/- with addition of ₹ 55,00,000/-, the respondent arbitrarily without providing opportunity of cross-examination contrary to the powers invested on him under the fiscal statute, arrived total income as ₹ 59,91,680/-. Thereby, the respondent determined income on assessment substantially higher than the returned income of ₹ 4,91,680/-, by way of 14 times, made assessment arriving total income of ₹ 59,91,680/-. Therefore, the assessment made by the respondent is a High Pitched Assessment. 34. In context with the high pitched assessment, we may also refer to a decision of the Delhi High Court in the case of Soul vs. Deputy Commissioner of Income Tax, reported in (2010) 323 ITR 305 (Delhi), wherein a Division Bench of the High Court observed in Para-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but we may note (for the purposes of only deciding this writ petition) that there is substance in the contention of the assessed that the assessment order is extremely harsh. 40. It may be recalled that the returned income of the assessed was ₹ 7.25 crores, but the assessed income is ₹ 58.68 crores, which is almost 8 times the returned income. In this regard, learned Counsel has drawn our attention to Instruction No. 96 dated 21st August, 1969 issued by the CBDT, which deals with the framing of an assessment which is substantially higher than the returned income. The relevant portion of the Instruction reads as follows: 1222. Income determined on assessment was substantially higher than returned income Whether collection of tax in dispute is to be held in abeyance till decision on appeal 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 arbitrarily pitched at high figures and that the collection of disputed demands as a result thereof was also not stayed in spite of the specific provision in the matter in Section 220(6). 2. The then Deputy Prime Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 matter 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 http://www.judis.nic.in 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, 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 within two months. iii. Appeal effects will have to be given within 2weeks from the receipt of the appellate order. Similarly, rectification application should be decided 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case where the outstanding demand is disputed before CIT(A), the Assessing Officer shall grant stay of demand till disposal of first appeal on payment of 15% of the disputed demand unless the case falls in the category discussed in para (B) thereunder. Similar references to the standard rate of 15% have also been made in succeeding paragraphs therein. 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 jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have omitted to claim for some reason or other...... . Thus, notwithstanding that the assessee may not have specifically invoked the three parameters for the grant of stay, it is incumbent upon the assessing officer to examine the existence of a prima facie case as well as call upon the assessee to demonstrate financial stringency, if any and arrive at the balance of convenience in the matter. 37. The following is discernible from the above referred judgment of the Madras High Court; (a) 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, i.e. prima facie case, balance of convenience and irreparable injury. (b) Notwithstanding that the assessee may not have specifically invoked the three parameters, referred to above, for the grant of stay, it is incumbent upon the assessing officer to examine the existence of a prima facie case as well as call upon the assessee to demonstrate financial stringency, if any, and arrive at the balance of convenience. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to drivers who are found to be medically unfit before dispensing with their services. The court cannot dictate the decision of the statutory authority that ought to be made in the exercise of discretion in a given case. The court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The court could only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law. Whether alternative job is to be offered or not is a matter left to the discretion of the competent authority of the Corporation and the Corporation has to exercise the discretion in individual cases. The court cannot command the Corporation to exercise discretion in a particular manner and in favour of a particular person. That would be beyond the jurisdiction of the court. 13. In the instant case, the Corporation has denied itself the discretion to offer an alternative job which the regulation requires it to exercise in individual cases of retrenchment. It may be stated that the statutory discretion cannot be fettered by selfcreated rules or policy. Although it is open to an authority to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose underlying conferment of such power. The requirements of reasonableness, rationality, impartiality, fairness and equity are inherent in any exercise of discretion; such an exercise can never be according to the private opinion. 44. It is hardly of any debate that discretion has to be exercised judiciously and, for that matter, all the facts and all the relevant surrounding factors as also the implication of exercise of discretion either way have to be properly weighed and a balanced decision is required to be taken. 45. The mandate of Parliament in sub-section (6) seems to be that the lower Assessing Officer should abide by and being bound by the decision of the appellate authority, should normally wait for the fate of such appeal filed by the assessee. Therefore, his discretion of not treating the assessee in default, conferred under sub-section (6) should ordinarily be exercised in favour of assessee, unless the overriding and overwhelming reasons are there to reject the application of the assessee under Section 220(6) of the Act. The application under Section 220(6) of the Act cannot normally be rejected merely describing it to be against the interest of Revenue if re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60-61 amounting to ₹ 7,056.15. It was argued on behalf of the respondent that there was an appeal pending with the Appellate Assistant Commissioner against the order of assessment and therefore it was incumbent upon the Income Tax Officer to exercise the statutory discretion properly under s. 220 (6) of the new Act in treating the assessee as being in default. The finding of the High Court is that the Income Tax Officer was not shown to have applied his mind to any of the facts relevant to the proper exercise of his discretion . In our opinion, the finding of the High Court cannot be upheld, because the respondent has not alleged in his writ petition any specific particulars in support of his, case that the Income Tax Officer has exercised his discretion in an arbitrary manner. In paragraph 12(b) of the writ petition the respondent had merely said that the order of the Income Tax Officer made under s. 220 was arbitrary and capricious . No other particulars were given by the respondent in his writ petition to show in what way the order was arbitrary or capricious. In the counter- affidavit the allegations of the respondent have been denied in this respect. We are of opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior in nature. Section 251 of the Act clearly stipulates that in disposing of an appeal, the CIT (Appeals) can confirm, reduce, enhance or annul the assessment. Section 251 (1) (c) of the Act further provides that in other cases, he may pass such orders in appeal as he thinks fit. These words harmoniously read, definitely mean that powers of appellate authorities under the Act are wide enough. Such powers could not be intended to be drained out or rendered meaningless, if the power to grant stay against the recovery of disputed demand is to be taken away from the first appellate authority. Such implied, necessary and inherent power must necessarily be read into these provisions conferring the powers upon the appellate authority to modify the impugned assessment order in any manner. In specific terms, the first appellate authority can even enhance the taxable income, while he has the power to reduce or completely set at naught the assessment. The words as he thinks fit in Section 251 (1) (C) are not redundant, as no such redundancy can be attributed to the Parliament. Therefore, mere absence of words power to grant stay in Section 251 of the Act cannot mean that such powers are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
