2022 (3) TMI 386 - HC - Income Tax

Stay of demand - Whether there is any pre-condition insisting the petitioner to make a pre-deposit of 20% of the demand, as that condition has not been imposed under Section 246-A? - HELD THAT - Once the appeal is filed, during the pendency of the appeal, it is open to the assessing authority to make a demand. In order to avoid to make the payment of the demand, one provision is available under the Act ie., Section 220(6) of the Act, under which the assessee can approach the assessing authority where he can seek for stay of the demand. If any such application is filed, the same shall be decided by the assessing authority at his discretion, of course imposing certain conditions, depending upon the facts and circumstances of the case. Here in the case in hand, though such an application is not filed by the petitioner, the assessing authority, suo-motu issued the communication dated 30.12.2021 directing the petitioner to pay 20% of the demand and further directed the petitioner to file application to seek stay of the remaining 80% of the demand. This proceedings issued by the assessing authority is in tune with Section 220(6) of the Act. Therefore, the petitioner need not construe that such insisting of 20% of the demand is a pre-deposit required for entertaining the appeal under Section 246A of the Act, but it is only a condition imposed by the assessing authority for grant of stay for the remaining amount of the demand under Section 220(6) of the Act. Therefore, for that reason the petitioner cannot once again challenge the impugned assessment order before this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. Therefore for all these reasons, this Court is not inclined to accept the prayer as sought for in this writ petition. Accordingly, the writ petition fails and it is dismissed. This dismissal shall not preclude the petitioner to make an application under Section 220(6) of the Act to the assessing authority in tune with the communication dated 30.12.2021 and if any such application is filed, the assessing authority shall consider the same and decide it at his discretion by imposing any condition, by taking into account the financial condition and other aspects of the petitioner being a Cooperative Society and pass orders thereon.

Summary

Issues:
1. Challenge to assessment order under Income Tax Act, 1961.
2. Pre-condition of deposit for filing an appeal.
3. Stay of demand under Section 220(6) of the Act.
4. Jurisdiction under Article 226 of the Constitution of India.

Analysis:
1. The petitioner, a Cooperative Society, challenged an assessment order dated 29.07.2021 under Section 144 of the Income Tax Act, 1961, through a writ petition seeking a Writ of Certiorari to quash the order.
2. The petitioner argued against a pre-condition of deposit for filing an appeal, contending that Section 246-A of the Act does not mandate a 20% deposit. The assessing officer directed the petitioner to pay 20% of the demand, leading to the writ petition.
3. The respondents stated that while no pre-condition of deposit is required for filing an appeal, seeking a stay of demand under Section 220(6) necessitates approaching the assessing authority. The assessing officer directed the petitioner to pay 20% of the demand for a stay.
4. The Court noted that the petitioner had filed an appeal without paying the 20% demand. Referring to a previous judgment, the Court clarified that the pre-deposit condition does not apply to filing an appeal but is for granting a stay under Section 220(6) of the Act.
5. The Court emphasized that the assessing authority's directive for 20% payment was not a pre-deposit for appeal under Section 246A but a condition for stay under Section 220(6). Thus, the petitioner's challenge under Article 226 was dismissed.
6. The Court allowed the petitioner to file an application under Section 220(6) for stay of the remaining 80% of the demand, considering the financial condition of the Cooperative Society. The writ petition was dismissed with no costs, allowing for further application under Section 220(6).

This detailed analysis of the judgment from the Madras High Court addresses the issues raised by the petitioner regarding the assessment order, pre-condition of deposit for appeal, stay of demand under Section 220(6), and the jurisdiction under Article 226 of the Constitution of India.