2013 (3) TMI 513 - HC - Income Tax

Stay - Recovery proceedings of the disputed demand - disallowance of the claim of relief under Section 10-B, disallowance of sale of scraps for the reason that the TDS was not collected at source under Section 206 and an amount was added on the ground that charges towards job work and clearing agents were not subjected to tax deduction at source - petitioner filed appeal before the second respondent-appellate authority along with stay petition praying to stay the collection of the disputed demand - Held that - It is the cardinal principle that the power of stay is not ordinarily to be exercised in a routine way or as a matter of course, in view of the special nature of Taxation and Revenue laws. Only when a strong prima-facie case is made out and when there is balance of convenience, the Tribunal/appellate authority will consider whether or not to grant stay of the recovery proceedings and the stay will be granted only in deserving and appropriate cases, where the Tribunal/appellate authority is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal before it. In the present case, it is informed by the learned counsel appearing for the parties that the recovery proceedings would be initiated, as impugned notice of demand is issued and the stay petition has not yet been disposed of by the second respondent-appellate authority. Thus the Writ Petition is disposed of, with a direction to the second respondent-appellate authority to dispose of the said stay petition, on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order. Till such time the parties shall maintain status-quo as on today.

Summary

Issues:
Challenge to communication of the third respondent in T.R.No.161-V/2012-13/TRO-III dated 7.2.2013, seeking to quash the same and to forbear the third respondent from initiating or continuing recovery proceedings for the disputed demand related to the assessment year 2008-2009.

Analysis:

1. Facts and Background:
The petitioner, a Company engaged in manufacturing and export, filed returns regularly under the Income Tax Act, 1961. The petitioner set up an export-oriented unit entitled to relief under Section 10-B of the I.T. Act. The assessing officer disallowed certain claims in the assessment for the year 2008-2009, leading to a demand for tax with interest.

2. Appeal and Stay Petition:
The petitioner filed an appeal before the second respondent, challenging the assessment order and also filed a stay petition. However, while these were pending, the third respondent issued a notice of demand, prompting the petitioner to file a Writ Petition seeking relief.

3. Contentions of Parties:
The petitioner's counsel argued for a direction to dispose of the stay petition and to stay the recovery proceedings. On the other hand, the SCGSC for the respondents contended that the appeal should have been filed before the administrative Commissioner of Income Tax.

4. Principle of Stay in Taxation Matters:
The court emphasized that the power of stay in taxation matters is not to be exercised routinely. It should only be granted when a strong prima facie case is established, and the balance of convenience favors granting the stay to prevent the appeal from being frustrated.

5. Decision and Order:
The court, considering the circumstances, directed the second respondent-appellate authority to dispose of the stay petition within four weeks. Until then, a status quo was ordered to be maintained. The petitioner was instructed to cooperate without seeking adjournments. No costs were awarded, and the Miscellaneous Petition was closed.

In conclusion, the judgment addressed the challenge to the communication of the third respondent regarding recovery proceedings for the disputed demand of the assessment year 2008-2009. It highlighted the importance of establishing a strong case for granting a stay in taxation matters and directed the appellate authority to expedite the disposal of the stay petition while maintaining the status quo.