TMI Blog2022 (2) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... s has been sought for through the impugned order may be reduced to a lesser one. If it is a lesser one, we cannot once again remand the matter back to the respondent i.e., the assessing authority to use his discretion to fix a lesser percentage of the demanded amount to be paid by the petitioner/assessee. In this context, since the demand under the assessment which is in question before the appellate authority is Rs. 12,86,72,780/-, which is comparatively a huge sum, instead of 20% demand by citing the Department Instruction No.1914 dated 29.02.2016, the assessing authority could have passed an order by making a demand of some lesser percentage. Considering all this Court feels that, instead of remanding the matter back to the respondent for re-consideration, a direction can be given to the petitioner/assessee to make a payment of at least 15% of the demand and on that condition, the petitioner would be entitled to get a stay of the assessment order which is under appeal before the appellate authority. If such a direction is given as an interim arrangement, this Court feels that, the ends of justice would be met. Thus dispose of this writ petition with the following order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 20.12.2021, stating that the petitioner shall pay at least 20% of the demand, otherwise he may not be entitled for stay. Aggrieved over the said order passed by the assessing authority, the present writ petition has been filed. 4. Heard Mr.Raghav Rajeev Menon, learned counsel appearing for the petitioner, who would submit that, when an application is filed under Section 220(6) of the Act, where certain grounds have been raised, to have a prima facie satisfaction of the assessing authority that the petitioner has got a presentable case before the appellate authority, which is pending consideration before the said authority, and during the interregnum, as an interim arrangement, stay can be granted, which is possible under Section 220(6) of the Act. 5. In this context, the present condition imposed that unless the petitioner/assessee makes a payment of 20% of the demand, the petitioner/assessee is not entitled for stay is an exorbitant condition without considering the grounds raised by the petitioner in the application submitted by the petitioner under Section 220(6) of the Act, he contended. 6. Learned counsel for the petitioner also relied upon some of the decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue (No.14 (SL-35_ of 1955 dated April 11, 1955) requires the officers of the department 'to assist' a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs....... Although, therefore, the responsibility for claiming refunds and reliefs rests with the assessees on whom it is imposed by law, officers should draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they 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. 15. I thus set aside impugned order dated 25.01.2019. The Assessing Officer is directed to pass orders de novo on the stay application filed by the petitioner in the 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. I have, for the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the matter back to the authority for re-consideration. 12. I have considered the submissions made by the learned counsel for both sides and have perused the materials placed on record. 13. Insofar as the case of the assessee is concerned, as against the order passed under Section 143(3) of the Act for the Assessment Year 2018-19 dated 26.03.2021, where a demand of Rs. 12,86,72,780/- has been made, the petitioner/assessee already filed an appeal before the CIT (Appeals). The appeal is still pending and it may take some time to decide the appeal and so during the pendency of the appeal, the petitioner is entitled to seek for a stay, of course by invoking sub-section (6) of Section 220 of the Act. 14. If we look at the language of the said Section, it shows that, where an assessee has presented an appeal under section 246 [or Section 246A] the Assessing Officer may, in his discretion and subject to such conditions as he may think fit to impose in the circumstances of the case, treat the assessee as not being in default in respect of the amount in dispute in the appeal. 15. Two things are to be noted in the said sub-section (6) ie., the assessing officer may use his discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion at Para 12 has also been quoted, where the learned Judge has stated that definite 20% need not be imposed in each and every case, even a lesser percentage can be imposed while passing an order under Section 220(6) of the Act. 22. If we take the said proposition as culled down by the learned Judge from the decision of the Hon'ble Supreme Court, this Court feels that, if at all the petitioner is having any grievance, that may be only to a limited extent to state that, 20% as has been sought for through the impugned order may be reduced to a lesser one. If it is a lesser one, we cannot once again remand the matter back to the respondent i.e., the assessing authority to use his discretion to fix a lesser percentage of the demanded amount to be paid by the petitioner/assessee. 23. In this context, since the demand under the assessment which is in question before the appellate authority is Rs. 12,86,72,780/-, which is comparatively a huge sum, instead of 20% demand by citing the Department Instruction No.1914 dated 29.02.2016, the assessing authority could have passed an order by making a demand of some lesser percentage. Considering the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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