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TMI Blog2015 (6) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... from the consequences, which would otherwise follow, if the assessee is to be treated as 'assessee in default', namely, payment of interest under Section 220(2) and penalty under Section 221 of the Act. Mere filing of appeal does not suo-moto stay the recovery proceedings and on presentation of appeal under Section 246 of Section 246 A, the Assessing Officer is empowered to exercise his discretion, subject to conditions as he may think fit to impose in the circumstances of case, for treating the assessee as not being in default in respect of amount in dispute in appeal, even though the time for payment has expired, as long as such appeal remains disposed of. Here the application in question lacked necessary material particulars, as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent no. 1, with a direction, to not resort to any coercive methods of recovery of disputed tax demand and in case of any such measures, already adopted, the same be rescinded or revoked. 3. to issue a writ, order or direction in the nature of mandamus to the Commissioner of Income Tax (Appeals) - III, Lucknow, being respondent no. 2, with a direction, to expedite the hearing of the Income Tax Appeal and Stay Petition of the Petitioner/Assessee in the matter, pending which the demanded tax be kept in abeyance as per the provisions of Section 220 (6). 4. to issue a writ, order or direction in the nature of mandamus to stay the operation of Notice of Demand u/s 156 of the Act, during the determination of the correct income of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y conferred has not at all been properly exercised and there is gross failure in exercising the authority whereas in the interest of justice requisite relief, as has been claimed for, ought to have been allowed. The request that has been made on behalf of petitioner has been resisted by Shri Ashok Kumar, Advocate, by contending that before the appellate forum petitioner is not at all cooperating and are buying time and, in view of this background, the request in question, that has been so made, as it has no substance, has rightly been turned down. After respective arguments have been advanced the factual situation that is so emerging in the present case is that Assistant Commissioner of Income Tax has made assessment order for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 226 (3) of the Income Tax Act would be taken. The fact of the matter is that but for pendency of appeal and moving of stay application and the grounds nothing more has been substantiated in the application dated 30.4.2015 and, in view of this, once no ground whatsoever has been made out to justify the request then it cannot be said that the order, that has been so passed, suffers from any infirmity. The Powers of Assessing Officer under Section 220 (6) of the Act, cannot be said to be power to grant stay against the recovery of disputed demand. The said provisions gives discretion to the Assessing Authority, not to treat the assessee in default subject to such conditions as he may think fit, to impose in the circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no infirmity in decision, so taken, in view of this, as far as this Court is concerned, this Court is not at all interfering with the order impugned but certainly as petitioner has already moved Appeal in question alongwith the stay application, we proceed to ask the Appellate Forum to decide the stay application of petitioner/assessee, in accordance with law, within a period of one month from the date of receipt of certified copy of this order and, thereafter, all attempt and endeavor should be made to decide the appeal in question, subject to convenience/roster and statutory provisions holding the field for decision of Appeal by the Appellate Forum. We also make it clear that passing of this order would not at all come in the way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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