JUDGMENT
A.K. Patnaik, J.
1. Heard Dr. A. K. Saraf, learned counsel for the petitioner, and Mr. U. Bhuyan, standing counsel for the Income-tax Department.
For the assessment year 1994-95, assessment was made against the petitioner-company. As per the said assessment Rs. 8,95,70,016 was demanded from the petitioner-company. A sum of Rs. 40,49,749 was, however, adjusted against the said demand out of the refund due to the petitioner for the assessment year 1996-97. The petitioner preferred an appeal before the Commissioner of Income-tax (Appeals), Guwahati. The said appeal has been rejected but the order passed by the appellate authority was communicated to the petitioner only on February 12, 2002. Consequent upon rejection of the appeal, the demand of Rs. 8,55,20,267 has been raised against the petitioner by the Assistant Commissioner of Income-tax, Dhubri Circle, by his notice dated February 8, 2002.
For the assessment year 1996-97, the petitioner was assessed to a demand of Rs. 2,16,69,927. The said demand, however, has been adjusted by the Department due to the petitioner. The petitioner filed an appeal before the Commissioner of Income-tax (Appeals), Guwahati, against the said assessment and demand but the said appeal has been rejected. The order of the appellate authority is yet to be communicated to the petitioner.
For the assessment year 1998-99, the petitioner-company has been assessed to a demand of Rs. 26,97,94,822. The petitioner preferred an appeal before the Commissioner of Income-tax (Appeals), Guwahati. But the said appeal has been rejected by the appellate authority. The orders passed by the appellate authority is yet to be communicated to the petitioner.
Coming to learn about the said assessments for the years 1994-95 and 1998-99, the petitioner submitted a petition on February 18, 2002, before the Assistant Commissioner of Income-tax, Dhubri Circle, stating therein, inter alia, that the company has gone through a very bad financial position and that its liquidity position has been severely affected and it will not be possible for the petitioner to pay the entire demand of Rs. 35.52 crores at a time. In the said petition, the petitioner offered to pay a sum of Rs. 3 crores against the aforesaid demand of Rs. 35.32 crores till its appeal before the Income-tax Appellate Tribunal is disposed of. The Assistant Commissioner of Income-tax, Dhubri Circle, by communication dated February 28, 2002, to the petitioner has allowed the petitioner to pay sum of Rs. 5 crores on or before February 28, 2002, and the balance of Rs. 30,53,15,089 in six equal monthly instalments to be paid in the months of March, 2002, to August, 2002, subject to payment of interest under Section 220(2) of the Income-tax Act, 1961. Aggrieved by the said order in the communication dated February 28, 2002, of the Assistant Commissioner of Income-tax, Dhubri Circle, the petitioner has filed two writ petitions registered as WP(C) No. 1443 of 2002 and WP(C) No. 1458 of 2002.
Dr. Saraf, learned counsel for the petitioner, submitted that pursuant to the said impugned communication dated February 28, 2002, of the Assistant Commissioner of Income-tax, Dhubri Circle, the petitioner has already deposited a sum of Rs. 5 crores for the assessment year 1998-99 but is not in a position to deposit the balance amount of Rs. 30,53,15,089 in six equal monthly instalments in the months of March, 2002, to August, 2002, as directed by the Assistant Commissioner of Income-tax, Dhubri Circle, due to its bad financial predicament and severe liquidity position. He submitted that under subsection (3) of Section 253 of the Income-tax Act, 1961, the assessee has been given 60 days time from the communication of the order to file appeal before the Appellate Tribunal. He further submitted that Sub-section (7) of Section 253 of the Income-tax Act, 1961, also makes it clear that application for stay of the demand can also be filed with the requisite fees. He argued that till the Appellate Tribunal considers the application for stay of the demand to be filed by the petitioner along with his appeal against the orders passed by the Commissioner of Income-tax (Appeals), Guwahati, the recovery of the balance amount of Rs. 30,53,15,089 should be stayed.
Mr. Bhuyan, however, vehemently resisted the submission of Dr. Saraf and submitted that the petitioner should pay the said amount in instalments fixed by the Assistant Commissioner of Income-tax, Dhubri Circle.
In my considered opinion, since the petitioner has been conferred with the right of appeal along with the right to file an application for stay of demand appealed against before the Appellate Tribunal, until the application of the petitioner for stay of the demand appealed against is considered by the Tribunal and the orders are passed by the Tribunal, the demand appealed against should be stayed. 60 days time from the date of communication of the orders to be appealed against has been given by the provisions of the Income-tax Act to the petitioner to file the appeal. I dispose of these writ petitions with the direction that in case the petitioner files the appeal within a period of 60 days from the date of the communication of the orders before the Appellate Tribunal at Guwahati and also files along with the said appeal an application for stay of demand, the recovery of the balance amount of Rs. 30,53,15,089 from the petitioner shall not be made until orders are passed by the Appellate Tribunal on the said application for stay of demand and until 15 days thereafter to enable the petitioner to move any higher forum against the orders passed on the said application by the Appellate Tribunal.
With the aforesaid direction these two writ petitions are disposed of.