stay application
shammi kumar
(Querist) 20 February 2010
This query is : Resolved
I want to apply to AO for stay of demand of income tax against order u/s 143(3)of the income tax act ............is there any time limit to file the application of stay ? list of paper or document to be attached with application ?
A V Vishal
(Expert) 20 February 2010
Why do you want to stay the demand. Only in case of appeal to CIT(A) against the impugned asessment order, the collection of tax can be stayed until the first appeal is disposed off. The time limit of filing an appeal before the CIT(A) is 30 days from the date of the receipt of the assessment order.
shammi kumar
(Querist) 20 February 2010
mr Vishal i hv got notice u/s 221(1) for recovery of demand and i hv already filed the appeal in time pls guide me to the procedure to be taken including document to be attched if any .............
A V Vishal
(Expert) 20 February 2010
INCOME-TAX PROVISIONS REGARDING STAY OF DEMAND
Section 220(6) of the Act gives discretionary power to the AO to stay the demand and reads as under:
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 undisposed of.
Thus a petition lies with the AO to keep the demand stayed during the pendency of the appeal of the assessee. The discretion given is to be exercised judiciously and not arbitrarily. A petition can be filed for this purpose within 30 days of the receipt of demand notice, setting out the grounds for staying the demand. In M.L.M. Mahalingam Chettiar v. Third ITO (1967) 66 ITR 287 (Mad.), it was held that the discretion vested in the ITO under section 220(6) is not merely a naked and arbitrary power but a power coupled with a responsibility and the concerned officer should take all the circumstances into account and all the considerations that could be urged or are argued by the assessee as to why he should not be treated as not being in default, and then make such order as it appropriate to the facts of the case. In other words, a request for the exercise of the power under section 220(6) cannot be merely summarily rejected on the basis that power is there with the officer but that he is not bound to exercise it.
There are numerous case laws and circulars of the CBDT in this regard, kindly refer them I am not specifically answering your query since the precedents have to be considered on case to case basis.
Sivadas Chettur
(Expert) 20 February 2010
Soon after receipt of the order you file stay petitions before ITO (with request not to treat as defaulter) and the Administrative Commissioner ie CIT. File stay petition before CIT(A) also. If the stay orders of ITO or CIT are not favourable to you can press the CIT(A) for stay. If he is also not granting stay you can approach the High court under Article 226 of the constitution ie a writ of mandamus or certiorari.
Dr.Anjani Kumar Vaidyasen,09431271130,Patna
(Expert) 21 February 2010
Dear Sir,
It is indeed that your IT return will assesse acordingly but you need some time to proceedings the file.
Here you may be allowed three times for submission of your representation before AO
I think you have some other problem.You can write your detail problem on my email-akvaidyasen@gmail.com and I ensure you to suggest you as per norms or IT Act.
Thanking You.
Kumar Thadhani
(Expert) 08 March 2010
As you had recived the notice 221(1) you have only to reply to the notice what has caused you not to deposit or pay tax arrears in time.It is not order as said by you.THE ORDER WHICH YOU RECEIVED IS U/S 143(3) where you had presented appeal within 30days. It is AO discretionary to stay the demand or ask you to pay the tex dues.
