2017 (11) TMI 1357 - HC - Income Tax

Stay of recovery of demand - prayer to permit him to pay 5% of the total outstanding demand amounting to ₹ 1,46,76,920/- in monthly instalments of ₹ 1 lakh - power to grant stay - Held that - This Court is of the considered view that the first respondent should take a decision on merits on the petitions filed by the petitioner dated 03.8.2017. It is made clear that this Court has not accepted the submissions of the petitioner that the first respondent abdicated his powers or outrightly stated that he does not have a power to grant stay. Revenue was fully justified in his submission that the petitioner s conduct virtually amounts to forum shopping. It is true because the petitioner has been moving various authorities, who have considered the petitioner s requests, afforded him an opportunity of personal hearing and passed speaking orders. However, the petitioner did not comply with any of those directions, but once again approached the first respondent. This will clearly shows the conduct of the petitioner. But, this cannot be a ground for refusing to consider the stay petitions by the Appellate Authority, before whom, the appeals are pending. Thus, for all the above reasons in the preceding paragraphs and on the grounds pointed out earlier, the writ petition is partly allowed, the impugned order dated 12.10.2017 passed by the first respondent is set aside and the matter is remitted back to the first respondent to be considered on merits and in accordance with law after affording an opportunity of personal hearing

Summary

Issues:
Petitioner aggrieved by communication and order, failure to comply with conditions, multiple petitions for stay, rejection of stay petitions, refusal to entertain petitions, jurisdiction of Appellate Authority.

Analysis:
The petitioner appealed against assessment orders for multiple years but did not file stay petitions initially. After facing challenges in complying with conditions, the petitioner filed various petitions for stay with different tax authorities. The Additional Commissioner rejected the stay petitions citing guidelines on demand stays. The Principal Commissioner also required payment for stay but rejected a petition for lifting bank account attachment. The petitioner then filed petitions before the Appellate Authority, citing legal precedents and requesting stay with installment payments. The Appellate Authority refused to entertain the petitions, stating it lacked administrative powers for such requests. However, the court clarified that the Appellate Authority has jurisdiction to consider stay petitions on merits.

The court noted that the petitioner's conduct could be seen as forum shopping due to approaching multiple authorities without compliance. Despite this, the court emphasized that such conduct should not be a ground for refusing to consider stay petitions. Referring to legal precedents, the court held that the Appellate Authority has the power to deal with stay petitions on merits and in accordance with the law. Consequently, the court partly allowed the writ petition, setting aside the impugned order and remitting the matter back to the Appellate Authority for a decision on merits after affording a personal hearing.

In conclusion, the court acknowledged the petitioner's actions but emphasized the Appellate Authority's jurisdiction to consider stay petitions on their merits. The court's decision to remit the matter back to the Appellate Authority for a proper evaluation aligns with legal principles and precedents, ensuring a fair and thorough examination of the petitioner's requests.