By TIOL News Service

CHENNAI, JAN 05, 2019: THE ISSUE BEFORE THE HIGH COURT IS - Whether when the order of assessment has not reached its finality, then the assessee is entitled to file stay petition before the Appellate Authority and canvas all issues in support of the petition. YES IS THE VERDICT.

Facts of the case:

For the relevant A.Y 2012-13, the AO passed an order of assessment u/s 143(3). Challenging the same, the assessee approached the CIT(A), in addition to the stay petition filed before the AO seeking to stay the recovery of disputed tax demand till the disposal of appeal before the CIT(A). The AO however, passed an order calling upon the assessee to pay 15% of the tax demand. Thus, the assessee preferred an application before the Pr CIT, seeking for stay of demand of entire disputed tax, which was also rejected by a single line order directing the AO to collect eligible demand.

High Court held,

++ it is seen that as against the order of assessment, the assessee has filed an appeal before the CIT (A) and the same is pending. Therefore, it is evident that the order of assessment has not reached its finality. Needless to say that the assessee is entitled to file stay petition before the Appellate Authority and canvas all the points in support of their stay petition. The similar view is expressed by this Court in W.P.No.5794 of 2018. However, in this case, they have gone before the Principal Commissioner and sought for stay, who unfortunately rejected the petition by a single line order, without stating any reason or finding as to why the application is liable to be rejected. Therefore, such order of the Pr CIT cannot be sustained. However, this Court is not inclined to remit the matter back to him for considering the petition once again, since the assessee is entitled to file such stay petition before the CIT(A) himself, where the appeal is admittedly pending.

(See 2019-TIOL-44-HC-MAD-IT)