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2013 DIGILAW 1457 (MP)

Kanchanbag v. Union of India

2013-11-26

S.C.SHARMA, SHANTANU KEMKAR

body2013
Judgment: Shantanu Kemkar, J. 1. By filing this petition under Article 226/277 of the Constitution of India, the petitioner has challenged the order dated 24.06.2013 (Annexure P/1) passed by the Deputy Commissioner, Income Tax, Ratlam refusing to invoke the powers under Section 220(6) of the Income Tax Act, 1961 (for short, the Act) by observing that the appeal against the order of assessment is pending before the Appellate Authority. Briefly stated, the Deputy Commissioner, Income Tax, Ratlam passed an order of assessment dated 28.03.2013; against which, the petitioner preferred an appeal before the Commissioner of Income Tax (Appeals). After filing of the appeal, the petitioner moved a stay application under Section 220(6) of the Act before the Assessing Officer/Deputy Commissioner making a prayer not to treat him as being in default in respect of the amount in dispute in the appeal. The said application suffered dismissal vide aforesaid order dated 24.06.2013. Aggrieved, the petitioner has filed this petition. 2. We have heard learned counsel for the parties. 3. Section 220(6) of the Act, which is relevant for deciding the issue involved in this writ petition reads, as under:- 220. When tax payable and when assessee deemed in default.- (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 though the time for payment has expired as long as such appeal remains un-disposed of. 4. On going through the impugned order, we find that the Assessing Officer/Deputy Commissioner, Income Tax has rejected the petitioner's application by giving following reason:- 5. In our considered view, the reason assigned for rejection of the prayer made by the petitioner cannot be said to be justified. On the other hand, it runs contrary to the object and spirit of Section 220(6) of the Act. It is only when assessee has presented an appeal, the power is required to be exercised under Section 220(6) of the Act by the Assessing Officer. Thus, in our considered view, the Assessing Officer/Deputy Commissioner has misdirected itself in rejecting the prayer by observing that since the appeal is pending, recovery cannot be stayed. It is only when assessee has presented an appeal, the power is required to be exercised under Section 220(6) of the Act by the Assessing Officer. Thus, in our considered view, the Assessing Officer/Deputy Commissioner has misdirected itself in rejecting the prayer by observing that since the appeal is pending, recovery cannot be stayed. In the circumstances, we quash the impugned order dated 24.06.2013 (Annexure P/1) passed by the Assessing Officer/Deputy Commissioner with a direction to the Assessing Officer to reconsider the petitioner's application and pass a fresh reasoned order, after giving opportunity of hearing to the petitioner.