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TMI Blog2012 (5) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... the law has not been provided by the Assessing Officer before treating the assessee in default under section 201(1) thereby the principle of justice has been violated. It was further submitted that the orders passed by the Assessing Officer are silent, non speaking and no reasons or cause has been shown as to how the Assessing Officer had determined the default in terms of section 201(1) and the levy of interest under section 201(1A) of the Act. It was contended that the Assessing Officer ought to have appreciated that the assessee company was having acute financial difficulties and in many cases, the recipient of the income had already filed their tax returns, thus had met the liability directly as provided under section 191 of the Act read with Board Circular No. 275/201/95-IT(B). Further, in the absence of analysis of the details of the assessee, it was not clear whether the so called default had occurred within the jurisdiction of the Assessing Officer. It was contended that the assessee filed a request before the Assessing Officer on 18.12.2011 for adjournment, which was till pending and therefore, the Assessing Officer ought not to have passed orders without giving opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee have been attached and the business of the assessee came to a halt due to non operation of its bank accounts. The learned AR submitted that the assessee has a prima facie arguable case and even the balance of convenience is in favour of the assessee, therefore, the total outstanding demand may be stayed. Reliance was placed on the following case laws : * Intel Tech India (P.) Ltd. (supra); * Children Education Society v. Dy. CIT (TDS) [2009] 319 ITR 409/[2010] 8 taxmann.com 213 (Kar.); * Mittal Steel Ltd. v. Asstt. CIT [1999] 240 ITR 707 (Kar.); * Kantilal Manilal (supra). 3. In his rival submissions, the learned CIT, DR submitted that it is not a fit case where stay can be granted, particularly when the assessee had not made any payment of taxes and as per the provisions of section 249(4) of the Act, the appeals filed by the assessee cannot be admitted without making the payment of due taxes. It was further submitted, that the assessee collected the taxes but did not make the payment, so the assessee was rightly declared as "assessee in default". It was further stated that the liability under section 201(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal before making the payment of admitted tax, it is noticed that this issue has been settled by the Hon'ble Supreme Court in the case of Pawan Kumar Laddha (supra) wherein the provisions of section 249(4) of the Act has been considered and it has been held that "a provision which insists on the assessee satisfying a condition of paying the admitted tax as condition precedent to his filing of the appeal under section 253(1)(b) of the Act is a disenabling provision. Such a disenabling provision must be clearly spelt out by the Legislature while enacting the statute and that has been done only in the case of an appeal under section 249(4)(a) of the Act and no such disenabling provision is there under section 253(1)(b) of the Act. The relevant finding of the Hon'ble Supreme Court in para 7 at page no.327 and 328 of the aforesaid referred to case of Pawan Kumar Laddha (supra) read as under:- "Chapter XX deals with "Appeals and revisions". Chapter XX is divided into headings "A" top "F". Section 246 enumerates a list of orders of the Assessing Officer against which appeal(s) would lie. In that list of orders, an appeal to the Appellate Tribunal under section 253(1) is not mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to his filing the appeal before the Appellate Tribunal under section 253(1)(b) of the 1961 Act. Lastly, one must keep in mind the principle that the doctrine of incorporation cannot be invoked by implication. A provision which insists on the assessee satisfying a condition of paying the admitted tax as condition precedent to his filing of appeal under section 253(1)(b) of the 1961 Act is a disenabling provision. Such a disenabling provision must be clearly spelt out by the Legislature while enacting the statute. The courts have to be careful in reading into the Act such disenabling provisions as that would tantamount to judicial legislature which the courts must eschew. It is for Parliament to specifically say that no appeal shall be filed or admitted or maintainable without the assessee(s) paying the admitted tax due. That has been done only in the case of an appeal under section 249(4)(a) of the 1961 Act. We cannot read such a disenabling provision into section 253(1)(b) of the 1961 Act. If we do so, we are judicially legislating by reading something into the Act which is not there. In such a case, the question would also arise as to why the Appellate Tribunal should not be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee when it is allowed to run the business smoothly and earn something from that business, by putting the business of the assessee at halt through attachment is not a solution. We, therefore, by considering the totality of the facts relevant to the present case, proposed to the learned counsel for the assessee to make a payment of Rs.44 crores out of the outstanding demand on or before 27.3.2012 and the remaining amount in the weekly instalments of Rs.9 crores each starting from 7/4/2012 till the demand is exhausted or till the disposal of the appeals, whichever is earlier. The assessee shall also furnish the bank guarantee against the payment of weekly instalment of Rs.9 crore only. The said proposal was accepted. The department is directed to lift the attachment, if any, immediately so that the assessee may start smooth functioning and will be in a position to make the payments by earning from business activities. The assessee is directed to make the compliance of the above direction. The appeals are fixed for hearing on 12.4.2012. Since the date was pronounced in the open court, there is no need to send notices to both the parties for hearing of the appeals. 6. In the result ..... X X X X Extracts X X X X X X X X Extracts X X X X
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