2015 (9) TMI 1415 - HC - Income Tax

Demand notice for demand - stay petition - whether the Commissioner has got no power to pass any stay order ? - Held that - The said contention is not sustainable, when the Appellate Commissioner has got power to modify or set aside or pass any order regarding the demand, that goes without saying that the said Officer without closing the matter has got ample power or incidental power to quash any order, pending disposal of the appeal. In view of that, the impugned demand notice for demand passed by the second respondent/Assessment Officer is set aside and the first respondent/Commissioner of Income Tax is directed to pass order in the stay petition, within a period of four weeks from the date of receipt of a copy of this order.

Summary

Issues:
1. Stay petition filed by the petitioner before the Assessment Officer was dismissed.
2. Appeal filed by the petitioner before the Commissioner of Income Tax (Appeals) against the assessment order.
3. Impugned demand notice issued by the Assessment Officer for a specific amount.
4. Challenge to the order dated 14.08.2015 through a writ petition before the High Court.

Stay Petition Dismissal:
The petitioner, an Income Tax Assessee, filed an original return for the assessment year 2009-2010, which was later re-opened, leading to the filing of a stay petition before the Assessment Officer. However, the stay petition was dismissed. Subsequently, an appeal was made before the Commissioner of Income Tax (Appeals) against the assessment order, with another stay petition filed during the appeal process. Despite the pending stay petition, the Assessment Officer issued a demand notice for a significant amount on 14.08.2015, prompting the petitioner to challenge this action through a writ petition.

Commissioner's Power to Pass Stay Order:
During the proceedings, it was contended that the Commissioner lacked the authority to pass a stay order. However, it was clarified that the Appellate Commissioner does possess the power to modify, set aside, or issue any order concerning the demand. Therefore, it was established that the Commissioner, without concluding the matter, holds sufficient incidental power to annul any order while the appeal is pending. This clarification led to the setting aside of the impugned order dated 14.08.2015 by the Assessment Officer, directing the Commissioner to decide on the stay petition within four weeks from the date of the court's order.

Conclusion:
The High Court, after considering the arguments and legal provisions, ruled in favor of the petitioner. The impugned order issued by the Assessment Officer was set aside, and the Commissioner of Income Tax was instructed to address the stay petition within a stipulated timeframe. Consequently, the writ petition was granted without costs, and the connected Miscellaneous Petition was closed as well.