9911796707
TMI Blog2009 (2) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... here an appeal under section 246 or under section 246A is pending, the Assessing Officer has the discretion, subject to such conditions as he may think fit to impose, to treat the assessee as not being in default in respect of the amount in dispute in the appeal, as long as such appeal remains pending though the time for payment might have expired. Consequently, a circular dated March 6, 1989, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als), West Bengal, respondent No. 2. It appears that on the day on which assessment order was passed, respondent No. 3 had issued notice of demand requesting the petitioner to pay a sum of Rs.10,27,028. After receiving such notice of demand the petitioner had filed an application for stay which, as already noted, was rejected by an order dated November 10, 2008. The relevant portion of the order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision in section 220(6) of the Income-tax Act, 1961, which is as under: "220.(6) Where an assessee has presented an appeal under section 246 or section 246A the Assessing Officer may, in his discretion and subject to such conditions as he may think fit to impose in the circumstances of the case, treat the assessee as not being in default in respect of the amount in dispute in the appeal, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, it is to be done judiciously. From a perusal of the order impugned I find that discretion has been exercised mechanically and without the application of mind. Since an assessee has a statutory right to prefer appeal against an order of assessment, the observation of the Assessing Officer in the order impugned that "your petition for granting stay in the realisation of demand for the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of at the stage of admission without calling for affidavits, the allegations made in the writ petition are deemed not to have been admitted by the respondents. 6. The writ petition is, thus allowed. 7. There will be no order as to costs. 8. Urgent Xerox certified copy of this order, if applied for, be given to the appearing parties on priority basis. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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