2013 (7) TMI 450 - HC - Income Tax

Recovery - Stay application u/s 220(6) Held that - It would be appropriate to allow the Appellate Commissioner to decide whether and on what conditions the recovery pending appeal should be stayed -the recovery notice was issued even without waiting for the limitation period for filing the appeal to expire - Particularly, when the petitioner was a Government company, we wonder why such extraordinary urgency was shown- Court relied upon the decision of UTI Mutual Fund v. Income-Tax Officer (2012 (3) TMI 333 - BOMBAY HIGH COURT ) in which the demand notice was quashed and recovery was suspended till the appeal is decided. Appellate Commissioner would have the power to grant stay pending appeals - ITAT would have inherent powers to grant stay pending appeal and also relied on section 220(6) of the Income Tax Act, which authorises the Assessing Officer where the appeal is pending on his discretion and subject to such conditions as he may think fit to treat the assessee as not being in default in respect of the amount in dispute in the appeal petition decided in the favour of the assesse.

Summary

Issues:
1. Challenge to demand notice issued by the respondent for recovery of a substantial sum.
2. Urgency in recovery notice issuance before the limitation period for filing an appeal expired.
3. Application of guidelines for recovery pending appeal as laid down in previous judgments.
4. Power of the Appellate Commissioner to grant stay pending appeals.
5. Directions for the petitioner regarding filing an application for stay pending appeal.

Analysis:
The petitioner, a company, challenged a demand notice issued by the respondent for the recovery of a significant sum within a short period. The recovery notice was sent immediately after the assessment, even before the limitation period for filing an appeal had expired. The court questioned the urgency shown in the recovery process, especially considering the petitioner's status as a Government company.

The petitioner relied on a Division Bench decision of the Bombay High Court regarding guidelines for recovery pending appeal. These guidelines emphasized setting out the case of the assessee, considering financial difficulties, and assessing the likelihood of defeating the demand before resorting to coercive measures. The court found it appropriate to allow the Appellate Commissioner to decide on the stay of recovery pending the appeal, as per recent judgments granting such powers to the Commissioner.

In light of the above, the court directed the petitioner to file an application for stay pending appeal before the Appellate Commissioner by a specified date. The Commissioner was instructed to hear the petitioner's representative and pass an order in accordance with the law. Until the Commissioner's decision, no recovery against the petitioner was permitted based on the assessment order. The petitioner was also given the option to request early disposal of the appeal, subject to the Commissioner's availability.

In conclusion, the petition was disposed of with directions for the petitioner to follow the specified process for seeking a stay on the recovery pending appeal, ensuring a fair and lawful decision-making process in line with established legal principles and recent judicial interpretations.