MASCOT CONSTRUTION CO PARTNERSHIP FIRM THROUGH ITS MANAGING PARTNER KHAJA AMINUDDIN SHAIKH MEHBOOB vs. PR COMMISSIOENR OF INCOME TAX 2 AND OTHERS
What did the High Court hold?
The High Court quashed and set aside the impugned orders. The Court held that while it is within the authority's discretion to direct payment of a particular percentage of the amount as a pre-condition for stay, the prima facie case put forth by the parties must be considered. The authority must deal with the contentions raised by the parties to demonstrate application of mind, as reasons are a pillar of natural justice. The Court found that the authority had not dealt with the petitioner's case in the impugned order to substantiate the discretion exercised. Therefore, the authority was directed to consider the stay application on its own merits, taking a decision that prima facie meets the case put forth by the petitioner. The petitioner was directed to appear before the authority on 15.04.2019 for expeditious disposal. The issue of whether the retracted disclosure during the survey was considered was noted as not having been addressed by the authority.
What were the facts?
The petitioner, Mascot Construction Co. Partnership Firm, filed a writ petition challenging two orders: one rejecting its application for a stay and another order passed in review of the stay application. The petitioner argued that the authority incorrectly relied on CBDT guidelines (Instruction No. 1914, dated 31.07.2017) which mandated a 20% deposit of the tax demanded as a pre-condition for granting stay, thereby restricting discretionary powers. The revenue contended that the authority had considered the petitioner's case and the order was not solely based on the CBDT circular. The petitioner cited the Supreme Court judgment in Principal Commissioner of Income Tax vs. LG Electronics India (P) Ltd. and a Delhi High Court order in the same case.
What were the issues?
1. Whether the authority erred in rejecting the stay application by strictly adhering to the CBDT guidelines (Instruction No. 1914) mandating a 20% deposit of tax demanded as a pre-condition for stay, thereby potentially restricting its discretionary powers, under Section 220(6) of the Income Tax Act, 1961? Assessee's Contentions: - The CBDT circular cannot restrict the discretionary powers of the authority. - The authority failed to consider the petitioner's case and relied solely on the CBDT guidelines. - Relied on the Supreme Court judgment in Principal Commissioner of Income Tax and Ors. Vs. LG Electronics India (P) Ltd. and the Delhi High Court order in LG Electronics India (P) Ltd. Vs. Principal Commissioner of Income Tax and Ors. (2018) 168 DTR (Del) 354. Revenue's Contentions: - The authority considered the petitioner's case and the order was not solely based on the CBDT circular. - The authority considered that the petitioner had made a declaration during the survey.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
given by the Apex Court in the said judgment.
The authority in the impugned order observes that the office memorandum has streamlined the procedure for considering stay petition and it lays down payment of 20% of tax demand as pre condition for grant of stay on demand. One rider was attached in the order that in view of nature of addition resulting in the disputed demand is such that payment of a lump sum amount lower than 20% is not warranted.
The order passed in review reiterates the same. It is further observed in said order that the assessee himself voluntarily disclosed certain amount of income over and above the regular income during the course of survey proceedings. The case of the petitioner appears to be that the same has been retracted. The said aspect has not been considered by the authority.
It is discretion of the authority to direct payment of particular percentage of the amount as a precondition for stay. However while considering the stay petition the prima facie case put forth by the parties is required to be considered. The authority has to deal with the contentions raised by the parties so as to disclose the application of mind by the authority to the contention put forth by the parties. Reasons are required to be given. Reasons now are considered
(4) 56wp132332018 to be one of the pillar of the principles of natural justice.
We do not find that the case put forth by the petitioner has been dealt with while passing impugned order so as to substantiate the discretion exercised by him. If after considering the case put forth by the petitioner, the authority may come to the conclusion about the quantum of the amount the petitioner is required to deposit as a pre condition for stay.
In light of the above, the impugned orders are quashed and set aside. The authority shall consider the stay application filed by the petitioner on its own merits and take decision prima facie meeting out the case put forth by the petitioner. The petitioner shall appear before the authority on 15.04.2019 and shall cooperate in expeditious disposal of the said petition.
Writ Petition accordingly disposed of. No costs. (A. M. DHAVALE) (S. V. GANGAPURWALA) JUDGE JUDGE Devendra/April19
More judgments on Section 220(6)
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- Jayant Security and Finance Ltd, Indore vs ACIT Central-2, BhopalITA 90/IND/2025[2016-17]Status: Disposed7 Jul 2025AY 2016-17
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