9911796707
TMI Blog2010 (3) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Gujarat Town Planning and Urban Development Act, 1976. The income of the petitioner was exempt till the assessment year 2002-03 under section 10(20A) of the Income-tax Act, 1961 (the Act), considering the fact that the petitioner was engaged in development of urban areas of Ahmedabad. The said provision was omitted with effect from April 1, 2003, by the Finance Act, 2002. The petitioner had applied for and had been granted registration under section 12AA of the Act with effect from April 1, 2002, vide order (in the form of certificate) dated October 23, 2003, by the Director of Income-tax (Exemption), Ahmedabad. For the assessment years 2003-04 to 2006-07, the petitioner filed returns of income declaring total income at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is paid up by February 25, 2010, failing which the respondent would initiate coercive measures to enforce the demand payable by the petitioner. It is this communication which is primarily challenged in the present petition along with the incidental/alternative prayer to stay the demand notice dated December 30, 2009. 6. On behalf of the petitioner it was submitted that the issue on the merits was concluded in favour of the petitioner by the judgments rendered by this court as confirmed by the apex court. It was also submitted that the circular issued by the Central Board of Direct Taxes was binding so far as the respondent is concerned and the respondent was duty bound to stay the disputed demand till the decision of first appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -reply dated March 12, 2010, filed by the respondent to emphasise the stand of the respondent authority. 9. Considering the fact that the appeal filed by the petitioner is pending before the first appellate authority the court does not intend to observe anything in relation to the merits of the controversy. Admittedly, the assessment has been framed on December 30, 2009. The certificate of registration granted by the Director of Income-tax (Exemption) under section 12AA of the Act dated October 23, 2003, has been cancelled only on February 15, 2010. In the circumstances, on the date when the assessment order was framed, viz., December 30, 2009, the income of the petitioner was exempt in entirety and the Assessing Officer could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as a business expenditure, the requirement being contribution should be made to a recognized provident fund. In almost similar circumstances, the Assessing Officer in the said case did not hold in favour of the employer and the apex court, while deciding the controversy as to what constituted "salary", observed as under (page 14) : "The facts in the present case that need be stressed in this behalf are that it was as far back as 1937 that the Commissioner had granted recognition to the provident fund maintained by the assessee under the relevant Rules under the 1922 Act, that such recognition had been granted after the true nature of the commission payable by the assessee to its salesmen under their contracts of employment had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in pursuance thereof could not have been sought to be recovered. The respondent was, therefore, duty bound to stay recovery of the demand raised pursuant to the assessment order dated December 30, 2009, for the assessment year 2007-08 till disposal of the first appeal which is already pending before first appellate authority. 13. Accordingly, the respondent is hereby directed to stay recovery of the entire demand raised in pursuance of the assessment order dated December 30, 2009, for the assessment year 2007-08 till the final disposal of the appeal pending before the first appellate authority. 14. The petition is allowed accordingly in the aforesaid terms. Rule made absolute with no order as to costs. 15. At this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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