2017 (7) TMI 777 - HC - Income Tax

Stay petition - whether the assessee has made out a prima facie case for grant of an interim order? - Held that - The petitioner/assessee filed the stay petition dated 20.02.2017 stating that the notice dated 05.12.2016 calling for the production of vouchers and bills pertaining to the business promotion expenses and overseas transport expenses and to appear for personal hearing on 09.12.2016 was received only on 23.12.2016 due to natural calamity, viz., Vardha Cyclone. Further it was stated that the notice was sent to a wrong address and the first respondent was constrained to pass the assessment order disallowing the expenses as the assessment was likely to become time barred and no opportunity was given to the petitioner to submit the information called for. Further it was stated they through their authorised representatives had earlier furnished all the ledger accounts and details as required by the Assessing Officer from time to time. Further it was stated that aggrieved by the assessment order, they have preferred an appeal before the Commissioner of Income Tax (Appeals)-Range 15 on 18.01.2017. On perusal of the order of assessment, it is seen that the respondent accepted the fact that the authorised representative of the petitioner appeared before him on various dates and filed the details called for. However, in the assessment order the first respondent has not stated as to when the notice issued by him dated 05.12.2016 was received by the assessee/petitioner. Therefore, the assessment order being an exparte order, the correctness of which will be decided by Commissioner of Income Tax (Appeals). Thus, taking note of all the above facts, this is a fit case where the entire demand should remain stays till the appeal is disposed of by the Commissioner of Income Tax (Appeals)-Range 15.

Summary

Issues: Challenge to order for stay of demand in tax assessment for the year 2014-15 based on CBDT directives.

Analysis:
1. The petitioner challenged an order by the first respondent denying a stay of demand in a tax assessment for the year 2014-15, citing CBDT directives that a mere appeal does not warrant a stay. The petitioner requested a complete stay of demand pending appeal.

2. The court found the impugned order to be a case of non-application of mind by the Assessing Officer. The court emphasized the Assessing Officer's duty to consider if the petitioner established a prima facie case for a stay. While CBDT directives provide guidance, they do not strip the Assessing Officer of discretionary power. The petitioner cited delays due to a natural calamity and lack of opportunity to submit information, which the Assessing Officer failed to address.

3. Despite the petitioner's submissions, the first respondent did not consider the request for a personal hearing or address the delays and errors in communication. The court noted that the assessment order was ex parte, with discrepancies in the timing of notice receipt. As a result, the court deemed it appropriate to stay the entire demand until the appeal is resolved by the Commissioner of Income Tax (Appeals)-Range 15.

4. In conclusion, the court allowed the writ petition, quashed the impugned order, and ordered a stay of demand related to the assessment for the year 2014-15 until the appeal is decided by the Commissioner of Income Tax (Appeals)-Range 15. No costs were imposed, and the connected miscellaneous petition was closed.