GA INFRA PRIVATE LIMITED vs. INCOME TAX OFFICER CIRCLE 6(2)

[2023/RJJP/008638] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 2727/2023 Ga Infra Private Limited, Plot No. 61, Keshav Nagar, Hawa Sadak, Jaipur Through Its Director, Shri Vinod Kumar Agarwal, S/o Shri Banwari Lal Agarwal, Aged About 56 Years, R/o 60/121, Rajat Path, Mansarover, Jaipur ----Petitioner Versus Income Tax Officer Circle 6(2), NCR Building, Statue Circle, Jaipur ----Respondent For Petitioner(s) : Mr. Gunjan Pathak For Respondent(s) : Mr. Sandeep Pathak with Ms. Jaya P. Pathak HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 28/04/2023 This writ petition is directed against the order dated 01.02.2023 by which application under Section 220(6) of Income Tax Act, 1961 (for short ‘the IT Act’) seeking relief against demand has been rejected by the Assessing Authority vide order dated 01.02.2023. Though an appeal has been preferred, learned counsel for the petitioner would submit that as the Appellate Authority does not have any jurisdiction to grant stay of demand, application under 220(6) of IT Act was preferred. Though specific and genuine hardship was stated before the concerned authority, the authority has rejected the application without due application of mind, therefore, the petitioner has approached this Court seeking to invoke extraordinary jurisdiction under Article 226 of the Constitution of India.

[2023/RJJP/008638] (2 of 3) [CW-2727/2023] Learned counsel for the petitioner has relied upon the several decisions of various Courts. Learned counsel for the respondent, on the other hand, submits that against the petitioner a demand of Rs.12,20,43,200/- has been raised. The effect of rejection of the application is that even in such a case, the petitioner may request to deposit only 20% i.e. approximately Rs.2.5 crores and, therefore, it cannot be stated to be a case of undue hardship warranting interference. Learned counsel for the respondent, relying upon a judgement in the case of Harsh Dipal Shah Vs. Union of India (R/Special Civil Application Nos.19804, 19808 and 19815 of 2021) passed by Hon’ble Gujarat High Court, would submit that in any case, it is always open for the petitioner to make application for stay of demand invoking inherent jurisdiction of the Appellate Authority. We find that the petitioner has already preferred an appeal. An application under Section 220(6) of the IT Act has been rejected by the Assessing Authority finding it to be not a case of hardship. In order to find whether its a case of hardship, the amount which is ultimately required to be paid upon rejection of stay, has to be taken into consideration. In the present case, as the impugned order itself shows, the petitioner in any case would be required to deposit only 20%. That comes to 20% of Rs.12,20,43,200/-. The order clearly says that the petitioner was advised to deposit 20%. Therefore, in these circumstances, we are not inclined to interfere with the order. Therefore, the writ petition is dismissed.

[2023/RJJP/008638] (3 of 3) [CW-2727/2023] In any case, it will always be open for the petitioner to apply for stay of demand before the Appellate Authority invoking its inherent jurisdiction, in view of the statement made by learned counsel for the respondent relying upon the judgement of Hon’ble Gujarat High Court. (ANIL KUMAR UPMAN),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ RAJAT/69