9911796707
TMI Blog2018 (4) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... lf could be disposed of finally today. 3. This Petition under Article 226 of the Constitution of India, challenges the method and the procedure adopted by the CIT(A) Respondent No.3 in dealing with the Petitioner's appeal filed under Section 246A of the Income Tax Act 1961(the Act). This appeal was filed from the order dated 31st December, 2017 of the Deputy Commissioner of Income Tax (Exemption) (DCIT(E)), in respect of Assessment Year 2015-16. 4. The primary grievance of the Petitioner is that the CIT(A) after having finally heard the petitioner on the merits of its appeal, instead of disposing of the appeal, seeks to set the clock back and pass an order on the petitioner's stay application. The aforesaid action on the part of the CIT(A) is without any basis in law, particularly, in the absence of any statutory requirement under the Act, of the tax demanded being paid/per-deposited before the appeal can be entertained/considered on merits. 5. Briefly, the relevant facts leading to this Petition, as urged by the Petitioner, are as under: (a) On 31st December, 2017, the Respondent No.2 - DCIT(E) passed an order under Section 143(3) of the Income Tax Act, 1961 (the Act). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, 2018, the CIT (A) commenced / started the hearing of the stay application filed by the Petitioner along with its appeal. At which time, the Petitioner's CA informed the CIT(A) that the appeal itself has been heard and, therefore, the necessity of hearing the stay application was not understood. However, despite of the above protest, Petitioner was left with no option as the CIT(A) took up the stay application for consideration. Therefore, without prejudice to its above submission, Petitioner made submissions on its stay application. At the conclusion of the hearing on 21st March, 2018, in response to the Petitioner's above protest, the CIT(A) informed the Petitioner that that even if the order on the pending appeal is passed on 27th March, 2018, it would not be possible to issue the order before 31st March, 2018. Thus the requirement of hearing and disposing of the stay application; (g) The Petitioner also alleges that though stay application was heard on 21st March, 2018, the CIT(A) mentioned the date of the hearing as 20th March, 2018 on the order sheet. It is alleged in the petition that when the incorrect date was pointed out, Petitioner was informed by the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Petitioner was directed to determine the amount payable on the individual heads of demand at varying percentages of the constituents of demand, aggregating to Rs. 122.04Crores. This, according to Mr. Mohanty, learned Counsel for the Revenue resulted in an aggregate amount of Rs. 15.16Crores, being payable before the balance of the aggregate demand of Rs. 122.04 Crores could be stayed. 6. The aforesaid facts have been taken from the Petition. These facts have not been disputed and/or denied by the CIT(A) and/or the CIT [E] by filing any affidavit. The allegations with regard to the CIT(A) mentioning of incorrect dates in the order sheet and the office of the CIT [E] threatening to attach the Petitioner's bank account and reopen Assessments for the last two years in case it fails to deposit the amount of Rs. 20 Crores before 31st March, 2018, is, indeed very serious. Particularly, when the Assessing officer or the CIT[E] could have dealt with the request of deposit by passing an order on the application under Section 220(6) of the Act filed by the petitioner. In the absence of denial on affidavit by the CIT(A) and CIT[E] the allegations in the petition cannot be discarded. Alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 8. We note that in terms of Section 246A of the Act, any person aggrieved by an order passed in regular assessment proceedings under Section 143(3) of the Act (such as the order dated 31 December 2017) is entitled to challenge it before the CIT(A). This challenge in appeal is not circumscribed by any requirement to pre-deposit and/or paying the amounts demanded, as a consequence of the order. Therefore the CIT(A) is obliged to entertain and dispose of the appeal before him on merits without any regard to the fact that the amounts demanded have been paid/deposited or not paid/deposited by the appellant before him. 9. We also note that there is no power bestowed upon the CIT(A) under the Act to stay the demand arising consequent to the order in appeal before him. In fact the power to stay such a demand has been bestowed upon the Assessing officer under Section 220(6) of the Act by not treating the Assessee in default where an appeal is awaiting final disposal before the CIT(A) on such conditions as the facts and circumstances of the case may warrant. Nevertheless, the CIT(A) as an appellate authority, has inherent powers of an Appellate Authority to do all things necessary to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in it as an Appellate Authority. The exercise of this jurisdiction is to be exercised on examining the order in appeal before the Commissioner of Income Tax (Appeals)... As against the above, the jurisdiction of the Assessing Officer of staying the demand under Section 220(6) of the Income Tax Act, 1961 (the Act) and that of the Commissioner of Income Tax, is a different consideration i.e. including other factors over and above the order. The Assessing Officer and the Commissioner do not stay the order in appeal but only stay the demand, consequent to the order which is in appeal." 10. In this case, admittedly no order under Section 220(6) of the Act has been passed by the Assessing officer or by the CIT[E]. 11. In the present case the undisputed facts are that the petitioner had filed an appeal to the CIT(A) from the order dated 31st December, 2017 of Respondent no.2 - DCIT(E). Besides the petitioner had also filed an application for stay of the order dated 31st December, 2017 to the CIT(A) seeking the exercise of its inherent powers, as the order was contrary to the binding decisions of the Tribunal. On 14th March, 2018, Petitioner received a communication from the Office o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the submission of the Petitioner not acceptable, either wholly or partly, it would result in the demand being sustained wholly or in part, which could then be collected in accordance with law. But the entire exercise, here, appears to be only to assist the Revenue to collect some amount of taxes prior to 31st. March 2018. This is certainly not expected of an Appellate Authority such as the CIT(A) who adjudicates disputes between the Revenue and the Assessee on a regular basis. The CIT(A) must not only be fair but appear to be so, in a country governed by Rule of law. In the absence of the above, the alternative remedy provided under the Act would be illusory leading to our entertaining writ petitions, even if an alternative remedy is provided under the Act. 14. In the above view, we set aside the order dated 23rd March, 2018 passed by the CIT(A) on the Petitioner's stay application. We direct the Respondent-Revenue not to initiate any recovery proceedings against the Petitioner till such time as the CIT(A) - Respondent No.3 disposes of the Petitioner's appeal from the order dated 31st December, 2017 of the Assessing Officer Respondent No.2 and for a period of two weeks ..... X X X X Extracts X X X X X X X X Extracts X X X X
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