2019 (2) TMI 998 - HC - Income Tax

Stay petition - pre-condition of the petitioner s depositing 20% of the disputed tax to have the coercive proceedings stayed until the appellate authority could consider the Ext.P5 - Held that - Ext.P6 order refers to the Ext.P7 office memorandum as the 1st respondent s source of power to order a stay on a pre-condition. On going through the Ext.P7, I reckon that that is an office memorandum that applies to the appeals pending before the CAT (Appeals). So the 1st respondent cannot take recourse to the Ext.P7. Then essentially, he should have been conferred the power under the provisions of the statute, to stay proceeds with or without any pre-condition. The Department could not bring to my notice any such power being enjoyed by the 1st respondent. There shall be a stay of all further proceedings until the Tribunal decides the petitioner s appeal, subject to the condition that the petitioner remits 20% of 430,05,99,970, that is 86,01,19,994, in two months from today.

Issues:
1. Validity of the order passed under Section 263 of the Income Tax Act
2. Legality of imposing a pre-condition for stay of coercive proceedings
3. Applicability of office memorandum Ext.P7
4. Authority's power to pass an order in the nature of Ext.P6
5. Jurisdiction of the High Court to pass a conditional order

Analysis:
1. The petitioner's assessment was completed under Section 143(3) of the Income Tax Act, following which the Department initiated proceedings under Section 263 of the Act. The petitioner objected to this and filed an appeal along with a stay petition before the 2nd respondent. The petitioner applied for a stay of proceedings through Ext.P5 due to apprehensions of coercive steps from the authorities.

2. In response to the petitioner's application, the 1st respondent passed the Ext.P6 order, requiring the petitioner to deposit 20% of the disputed tax as a pre-condition to stay the coercive proceedings until the appellate authority could consider Ext.P5. The petitioner challenged this order through a writ petition, questioning the authority's power to impose such a condition.

3. The petitioner's counsel argued that the Ext.P7 office memorandum, cited as the source of power for the Ext.P6 order, applies to appeals pending before the Commissioner of Income Tax (Appeals) and not before the Tribunal. It was contended that the 1st respondent lacked the power to pass such an order without statutory backing, rendering the Ext.P6 order invalid.

4. On review, the court found that the Ext.P7 office memorandum did not apply to the current situation before the Tribunal. The 1st respondent should have been conferred the power under statutory provisions to stay proceedings with or without any pre-condition, which was not demonstrated by the Department. The petitioner's counsel also highlighted the necessity of staying coercive recovery proceedings to prevent the appeal before the Tribunal from becoming infructuous.

5. Considering the circumstances, the High Court granted a stay on all further proceedings until the Tribunal decides the petitioner's appeal, with the condition that the petitioner remits 20% of the disputed tax amount within two months. The court disposed of the writ petition with these observations, emphasizing the importance of statutory backing for orders and the jurisdiction of the court to pass conditional orders under Article 226 of the Constitution.

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