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TMI Blog2018 (7) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ng note of the petitioner's case and without considering as to whether the petitioner has made out a prima facie case for grant of interim relief. The petitioner has specifically pointed out their financial position and the prejudice that is being caused to them on account of the high pitched assessment. They specifically pleaded that their income of the said year was 1/4th of tax assessed. This aspect was not dealt with by the respondent, while passing the impugned order. Larger question which will be decided by the CIT (A) is whether merely because a payment was reflected in form 26AS and shown to have been made to the assessee, can it be brought to tax, in the absence of proof to show that the assessee was the actual beneficiary of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for the year 2015-16 under Section 143(3) of the Act by order dated 29.12.2017. In the said assessment order, it has been stated that on perusal of the documents submitted by the assessee, it was noticed that the assessee has shown gross receipts of ₹ 28,05,852/-, from M/s.Conde Nast (India) Limited, while as per form 26AS, the figure shown is ₹ 6,62,03,927/-. The assessee explained by stating that the deductor has wrongly deducted TDS on the assessee's PAN, who is a coordinator instead of OMCs [actual deductees]. It appears that the assessee sought some more time to get details and since no details were forthcoming for nearly two months, the Assessing Officer issued show cause notice dated 04.10.2017, directing them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax (Appeals) on 19.01.2018. In the mean time, notice for imposition of penalty under Section 271(1)(c) of the Act, dated 28.12.2017, was issued and notice of demand was issued by the respondent under Section 157 of the Act, dated 29.12.2017. As the appeal filed by the assessee was pending before the CIT (A), the petitioner filed an application before the respondent on 01.01.2018, requesting for stay of the demand made under Section 220(6) of the Act. 4. After briefly narrating the facts, the assessee stated that if they are to be declared as an assessee in default, when the appeal was pending before the CIT (A), they will be put to great prejudice. As the income earned by the assessee in the said assessment year, is almost 1/4th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be put to irreparable hardship. Thus, when a statutory authority exercises power to grant interim relief, he cannot be scuttled down by directives, which leave no room for discretion of the authority. 5. In my considered view, the CBDT Office Memorandum, dated 31.07.2017, though appears to fix a percentage of tax to be paid for being entitled to an order of stay, exception has been carved out in a very same instruction and this is clear from the Office Memorandum dated 29.02.2016, in paragraph 4 [B(b)]. Thus, in my view the CBDT did not completely oust the jurisdiction of the officer, while examining a prayer for stay of the demand of tax pending appeal. Therefore, the respondent could not have passed the impugned order without taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer. Further, it is submitted that there is no necessity to afford an opportunity of personal hearing. 8. I find that the information furnished by the Assessing Officer in the parawise comments are not contained in the impugned order. The respondent cannot improve upon the impugned order by substituting fresh reasons in the form of a counter affidavit. Thus, the information furnished to the learned Standing counsel for the Revenue would clearly demonstrate that at the time of passing the impugned order, no such reasons weighed in the minds of the respondent and therefore, the respondent cannot justify his order by substituting fresh reasons, after the order is put to challenge. 9. Thus, for all the above reasons I am of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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