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TMI Blog2021 (9) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... llate authority, where admittedly, the appeal filed by the petitioner dated 29.04.2021, is pending? - HELD THAT:- Petitioner had been enjoying the benefit of Sections 11 and 12 of the Act, hitherto and such a benefit all of a sudden is withdrawn or taken back by citing Section 13(1)(a) of the Act, whether such a levy of Tax made on behalf of the revenue by the assessing officer is justifiable or not is the subject matter before the appellate authority and therefore, once the appellate authority takes up the appeal and decide the same and before which, if any demand is made, even as a condition under Section 220(6), that will be a case of prejudice to the petitioner, if ultimately the appeal is decided otherwise. Therefore, this Court feels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen assessment order was passed for the assessment year 2018-19, by the third respondent, the assessing officer has stated that, the petitioner, claiming to be a charitable Society or Trust or Institution, can no more enjoy the benefit under Sections 11 or 12 of the Act, in view of the provisions namely Section 13 of the Act, under which, if any part of the income from the property held under a Trust for private religious purposes, which does not enure for the benefit of public, would not be excluded from taxable income as provided under Sections 11 and 12 of the Act and therefore, in that context, it is the stand of the revenue that the petitioner would not be entitled to get any such benefit under Sections 11 and 12 of the Act and accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the respondent / Revenue in view of the amendment having been made in the year 1998 in the memorandum of articles of the Society, whereby, a clause has been inserted that the educational institutions established by the petitioner charitable Society is to provide education to all communities in general and to promote the interest of Muslim minority in particular. Merely because such an amendment has been made to make it as a charitable institution for the entire general public and particularly for Muslim minority people, the revenue has taken a stand in view of Section 13(1)(a) of the Act that, the benefit available under Sections 11 and 12 would not be made applicable to the petitioner institution. 8. According to the learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all sought for any interim order, merely because he has filed an appeal before the first respondent, the further follow up action, pursuant to the assessment made, cannot be put to halt and therefore, there is no wrong on the part of the fourth respondent to make a demand and issue show cause notice to seek show cause from the petitioner, as to why penalty should not be imposed. 10. Learned Counsel would further submit that, in this regard, if the petitioner feels aggrieved, as his appeal is pending, where he cannot get any disposal or get any interim order, during the pendency of the appeal, he can very well approach the assessing officer under Section 220(6) of the Act, by making an application to treat him as the assessee not in defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents, in such cases where appeal is filed and pending before the appellate forum either under Section 246 or 246(A), the appellant can very well approach the assessing officer concerned by filing an application under sub-section 6 of Section 220 of the Act and in such cases, the assessing officer, in his discretion, and subject to such conditions as he may think fit to impose in the circumstances of the case, may treat the assessee as not being in default in respect of the amount in dispute in the appeal, even though the time for payment has expired, as long as such appeal remains undisposed of. Therefore, it is an enabling provision for the appellant, for getting an interim relief, by making an application before the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand is made, even as a condition under Section 220(6), that will be a case of prejudice to the petitioner, if ultimately the appeal is decided otherwise. Therefore, this Court feels that in a case of this nature, when a prima facie case is made in this regard by the assessee that shall be taken into account. This has also been reiterated by this Court in an earlier order in W.P.(MD)No.5550 of 2020 dated 08.04.2021. 17. When that being the position, this Court feels that, no doubt, the petitioner assessee can very well approach the assessing officer, by invoking Section 220(6) of the Act and accordingly, the application to be filed in this regard, under the aforesaid provision can be decided by the assessing officer by taking into account ..... X X X X Extracts X X X X X X X X Extracts X X X X
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