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TMI Blog2013 (7) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in default, if he deposits part of the amount is, where the assessment order appears to be unreasonably high-pitched or where genuine hardship is likely to be caused to the assessee. Assessment is only two and half times higher than the returned income, we find that the exercise of discretion in favour of petitioner in directing him to deposit only 50% of the demand and that too in instalments is reasonable. The Assessing Officer has also found that as regards financial status the assessee has shown surplus of Rs.76,63,51,112/-, Sundry Creditors at Rs.14,30,40,673/- and cash and Bank balance at Rs.1,52,07,130/- in the return of income which shows that the financial health of the assessee is very much sound. The Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer considered the facts and circumstances of the case and has found that the assessment order is not unreasonable or high pitched and that the additions have been made on the basis of the facts available on record. He gave reasonable opportunity of hearing to the petitioner, however, looking to the scale of business and financial health of the company he found that there will be hardship to the company for payment of the outstanding amount and thus considering the request of the petitioner the Assessing Officer directed the company to pay 50% of the demand in 5 instalments upto 30.9.2013, the first of which is due on or before 25.5.2013, and has stayed the balance demand till the disposal of the appeal. 5. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 27.3.1978; instruction no.1282 dated 4.10.1979; instruction no.1362 dated 15.10.1980 in submitting that instruction no.1914 dated 2.12.1993 will not supersede the intention, which may be gathered from all these instructions and more particularly instruction no.96 dated 21.8.1969. He submits on the basis of various judgments cited by him including the judgments of Delhi High Court in Valvoline Cummins Limited Vs Deputy Commissioner of Income Tax and others, (2008) 307 ITR 103 (Delhi); Soul Vs Deputy Commissioner of Income Tax, (2010) 323 ITR 305 (Delhi) that the discretion of the Assessing Officer should be guided by instruction no.1914 dated 2.12.1993 taking into consideration and gathering the intention of the department in its previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 (6) has to be exercised in accordance with law. The Assessing Authority must give reasons in support of his decision in exercising such discretion, to be exercised judiciously. 10. In SOUL v. Deputy Commissioner of Income Tax (2010) 323 ITR 305 (Delhi) a Division Bench of Delhi High Court considered its previous judgment in Valvoline Cummins Ltd v. Deputy Commissioner of Income Tax (2008) 307 ITR 103 (Delhi) and held as follows:- "Having considered the arguments advanced by the learned counsel for the parties, we are of the view that although Instruction No. 1914 of 1993 specifically states that it is in supersession of all earlier instructions, the position obtaining after the decision of this Court in Valvoline Cummins Ltd. (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdictional Commissioner devcides the stay application which is pending before him in view of what has been discussed above. It is clarified that though the petitioner would be permitted to carry on day-to-day business operations and to make payments for statutory liabilities out of the said bank accounts, the petitioner shall not withdraw any money for any other purposes from the said bank accounts'. 11. The Delhi High Court considered the same question again in Taneja Developers and Infrastructure Ltd vs. Assistant Commissioner of Income Tax (2010) 324 ITR 247 in which the assessed income was 350 times higher of the returned income. It followed its earlier judgment in granting relief to the assessee. 12. In UTI Mutual Fund vs. Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to be caused to the assessee. 14. The word "pitched" is defined in the Webster's New Collegiate Dictionary (1) to erect and fix firmly in place; (2). to throw usu. with a particular objective or toward a particular point (hay onto a wagon); the word pitch also cannots the action or a manner of pitching or a distance between any point on the thread of a screw to the corresponding point on an adjacent thread measured parallel to the axis. The word "pitched" is also used in connection with the property of a sound and specially a musical tone that is determined by the frequency of the waves producing it; highness or lowness of a sound. It is not an appropriate word to be used for an assessment by a Income Tax Officer. 15. In exercise of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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