2019 (10) TMI 87 - HC - Income Tax

Stay petition - Exercise the jurisdiction of CIT(A) to decide u/s 251(1)(c) - CIT(A) directed the assessee to file stay petition before the AO - HELD THAT - The operative portion of Ext.P4 is already excerpted in the preceding paragraph. Perusal of excerpted portion shows that the second respondent instead of exercising the discretion and power independently available to him under Section 251(1)(c) of the I. T. Act, more in the nature of an advice disposed of the stay applications vide order dated 29.08.2019 in Ext.P4. Without much deliberation, it can be recorded that the said exercise of jurisdiction or discretion by the second respondent is not within the square where discretion and jurisdiction are vested with him. This Court is convinced by the alternative submission made by the learned counsel appearing for the respondents. Hence, Ext.P4 common order is set aside. The matter is remitted to second respondent for consideration and disposal of Ext. P3 stay petitions in all the writ petitions preferably within two months from the date of receipt of a copy of the judgment. There shall be stay of coercive steps against recovery of amount which is impugned in the respective appeals for ten weeks from today.

Summary

Issues:
Challenge to order under Section 251(1)(c) of the Income Tax Act, 1961.

Analysis:
The petitioner challenged Ext.P4 order of the second respondent as illegal, contending it amounted to refusing to exercise the jurisdiction conferred under Section 251(1)(c) of the Income Tax Act, 1961. The petitioner argued that the remedies under Section 220(6) and Section 251(1)(c) are independent, and having already availed the remedy of appeal under Section 246, the second respondent should have passed orders considering the grounds raised against the assessment orders. The petitioner referred to a Full Bench judgment and requested a stay pending appeal. On the other hand, the respondent argued that Ext.P4 was not a refusal to grant stay and suggested that the petitioner could request a reconsideration of the stay application. The court noted the submissions and perused the record.

The court found that the second respondent did not exercise the discretion and power independently under Section 251(1)(c) but rather advised the petitioner to file a stay petition. The court concluded that the exercise of jurisdiction by the second respondent was not within the scope of his discretion. The court accepted the alternative submission by the respondent and set aside the Ext.P4 order, remitting the matter to the second respondent for reconsideration and disposal of the stay petitions within two months. The court granted a stay of coercive steps against recovery for ten weeks from the date of the judgment. The writ petitions were disposed of accordingly.