9911796707
TMI Blog2009 (5) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... said amount of Rs. 1.50 crore. The petitioner was, then, served with a notice of demand for payment of Rs. 50 lakhs, as tax, and a sum of Rs. 1.50 crore as penalty. Aggrieved by the notice of demand, the petitioner filed a revision petition before the respondent No. 2, namely, the Commissioner of Taxes, Unit "B", Guwahati. While filing the revision, the petitioner also prayed for stay of realization of the amounts, which had been demanded by way of tax and also penalty. An order was, then, passed, on July 1, 2008, by respondent No. 2, stating to the effect that in order to admit the revision, it is necessary that the petitioner shall deposit 25 per cent of the disputed liability. The petitioner was accordingly directed to deposit 25 per cent of the disputed liability. Since the total demand, raised against the petitioner, was to the tune of Rs. 2 crores, 25 per cent of the disputed liability would have obviously amounted to Rs. 50 lakhs. On the ground that the petitioner had not deposited 25 per cent of the disputed liability, the revision was dismissed on January 1, 2009. The petitioner, then, applied, on April 8, 2009, for review of the order, dated January 1, 2009, aforemention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the disputed amount before the revision is admitted. It is submitted, by Dr. Saraf, learned Senior Counsel, that the manner, in which the respondent No. 2 has dealt with the matter, is against all canons of justice and repeated judicial pronouncements, made in various cases, that any authority, dealing with such a case, as the present one, shall act, with utmost care and attention, have been ignored. In support of his submission, Dr. Saraf places reliance on the decision, in Hardeodas Jagannath v. Income-tax Officer, Shillong reported in [1961] 43 ITR 562 (Assam). It has, however, been pointed out, on behalf of the respondents, that the petitioner, vide letter, dated May 8, 2009 informed the respondents that out of the amount of Rs. 25 lakhs, which the petitioner had been directed to deposit, the petitioner had deposited Rs. 4 lakhs and requested the respondents/authorities concerned to allow a period of two months for depositing the balance amount of Rs. 21 lakhs and also for furnishing bank guarantee of Rs. 25 lakhs. It is contended, on behalf of the respondents, that having agreed to deposit the sum of Rs. 25 lakhs, in terms of the directions, issued by the respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I may also point out that though the Commissioner of Taxes has the discretion to allow, or not to allow, a revision application, without payment of the disputed liability, such exercise of discretion has to be judicious and not arbitrary. In an order, admitting a revision application, without insisting that the assessee shall deposit the assessed amount, or, in an order, refusing to admit a revision application, until payment of the assessed amount and/or penalty, the Commissioner must assign cogent reasons. There can be no uniform yardstick and each case would depend on it own facts. The ground(s) on which an order of assessment or demand is raised, is, indeed, an important factor. If the Commissioner feels that stay, sought for, would put the realization of amount in jeopardy, this can be a reasonable factor for refusal to grant stay. The order of refusal or acceptance must, however, assign reasons. Even the amount payable by the assessee is a relevant factor. If the amount is heavy and the revision application prima facie discloses the possibility of the revision being allowed, it may be treated as a case, which would constitute hardship and, may, therefore, entitle the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such aspect. The position and economic circumstances of the assessee is another. If the officer feels that the stay would put the realization of the amount in jeopardy that would be a cogent factor to be taken into consideration. The amount involved is also a relevant factor. If it is a heavy amount, it should be presumed that immediate payment, pending an appeal in which there may be a reasonable chance of success, would constitute a hardship. Quick realization of tax may be an administrative expediency, but by itself it constitutes no ground for refusing a stay. While determining such an application the authority exercising discretion should not act in the role of a mere tax gatherer. After having considered all the authorities, in my opinion, each case will depend upon its own circumstances. The extreme proposition that section 45 confers a power on the Income-tax Officer to stay realization of the tax dues when an appeal has been filed is a power coupled with the duty to grant such a stay whenever such an occasion arises, cannot be accepted. Section 45 gives discretion to the Incometax Officer not to treat the assessee as a defaulter. It may be that it casts a duty upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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