2022 (2) TMI 1324 - HC - Income Tax

Stay of demand - Recovery proceddings - AO asked the writ applicant to deposit 20% of the total demand for the purpose of staying the further recovery - HELD THAT - In the appeals filed by the writ applicant before the CIT(A) under Section 246A of the Act interim applications have also been filed requesting the CIT(A) to stay the demand or recovery. In a very recent pronouncement by this very Bench in the case of Harsh Dipak Shah vs. Union of India 2022 (2) TMI 1208 - GUJARAT HIGH COURT this Court took the view that the Principal Commissioner undoubtedly has the power and the jurisdiction to stay the demand or recovery under Sub-section (6) of Section 220 of the Act but while saying so this Court also took the view that the CIT(A) being an appellate authority also has the inherent power to stay the recovery or demand pending the final disposal of the appeal. All the three writ applications are disposed of with a direction to the CIT(A) to take up all the interim applications filed by the writ applicants and pass an appropriate order in accordance with law. Till the CIT(A) decides such applications the interim order passed by this Court shall continue. We may only observe that while deciding such applications the CIT (A) shall keep in mind the principles of law explained by this Court in the case of Harsh Dipak Shah (supra).

Summary

Issues Involved:
- Writ application under Article 226 of the Constitution of India seeking various reliefs, including quashing of impugned orders and directions for stay of recovery of disputed tax demand.
- Jurisdictional authority to stay demand and recovery of assessed income under Section 153A compared to regular assessment under Section 139(1) of the Income Tax Act, 1961.
- Disputed demand pre-deposit requirement and approach to the Principal Commissioner of Income Tax for review.
- Power and jurisdiction of the Principal Commissioner and the CIT(A) to stay demand or recovery pending appeal.
- Applicability of recent pronouncement by the High Court in a similar case regarding the powers of appellate authorities in granting stay.

Detailed Analysis:

Issue 1: Writ Application Seeking Various Reliefs
The writ applicant sought relief under Article 226 of the Constitution of India, requesting the quashing of impugned orders dated 13th and 17th November 2021. The applicant also sought directions for a reasoned and speaking order, quashing the attachment of a Mercedes Benz car, deciding pending applications expeditiously, and restraining coercive measures for recovery of disputed tax demand during the pendency of the stay application.

Issue 2: Jurisdictional Assessment Under Section 153A
Search and seizure operations were conducted at the applicant's premises under Section 132 of the Income Tax Act, leading to assessment proceedings under Sections 153A and 143(3) for the assessment years 2014-15 to 2020-21. The assessed income under Section 153A was compared to the regular assessment under Section 139(1) of the Act, showing significant variations.

Issue 3: Disputed Demand Pre-Deposit and Review
The applicant requested the assessing officer to stay the demand pending appeals under Section 264A of the Act, which required a 20% pre-deposit of the total demand. Subsequently, the Joint Commissioner directed the applicant to approach the Principal Commissioner for a review of the assessing officer's decision regarding the pre-deposit requirement.

Issue 4: Power of Principal Commissioner and CIT(A) to Stay Demand
In a recent pronouncement by the High Court, it was highlighted that the Principal Commissioner has the power to stay demand or recovery under Section 220(6) of the Act. However, the CIT(A) as an appellate authority also possesses inherent power to stay recovery or demand pending the final disposal of the appeal, emphasizing the wide powers of appellate authorities under the Act.

Issue 5: Application of Recent Pronouncement
The High Court, considering the principles laid down in a recent judgment, directed the CIT(A) to review the interim applications filed by the writ applicant and make a decision on the stay of demand or recovery pending the final disposal of the appeals. The Court emphasized the importance of the CIT(A) considering the principles of law explained in the cited case.

In conclusion, the High Court disposed of the writ applications with a direction to the CIT(A) to review the interim applications and make appropriate decisions regarding the stay of demand or recovery, emphasizing the principles established in a recent judgment regarding the powers of appellate authorities in granting stay orders.