Dilip Kumar Seth, J. - (1.) On a premise of preferring an appeal against an order of assessment, the petitioner had prayed for stay of operation of the demand by an application made on February 4, 2002, being annexure "P -5". This was rejected by an order dated March 8, 2002, on the ground that appropriate opportunity was given to the petitioner under Sec. 158BC of the Income Tax Act, 1961, at the time of assessment. This order has since been challenged on the ground that the petitioner has not been given any opportunity of hearing and that the opportunity given at the time of assessment and the opportunity to be given for the purpose of staying the demand till the disposal of appeal are something different. The Income Tax Act does not provide for any provision under which stay could be obtained from the appellate authority. Therefore, according to Mr. Bhattacharya, under the provision of Sec. 220(6) of the Income Tax Act, the petitioner should be given proper opportunity. He had referred to various decisions to which we shall refer at the appropriate stage. He then contends that since the order rejecting the stay cannot be sustained the subsequent action taken under Sec. 226(3) of the Income Tax Act for resorting to garnishee proceeding can also not be sustained. He has also challenged the validity of the search and seizure under Sec. 132 on the ground that the ingredients on the basis whereof Sec. 132 can be resorted to, have not been satisfied. Submission on behalf of the respondents :
(2.) Mr. Ghosh, on the other hand, points out that so far as the search and seizure is concerned, no interim order could be granted. It is a matter to be decided on appeal. So far as Sec. 226(3) is concerned, the power is conferred on the respondent to resort to such proceeding, if the demand is not stayed and there is a default on the part of the assessee or stay was refused. Therefore, there is no absence of jurisdiction in resorting to Sec. 226(3). According to him, the order has already taken effect and as such the same cannot be stayed. The other contention he has raised is that so far as Sec. 220(6) is concerned, it does not contemplate the making of any application and as such it is not a regular judicial proceeding, in which the assessee can claim right of hearing. If it does not postulate any right on the assessee to make any application, he cannot claim that before passing an order an opportunity of hearing is to be given. Sec. 220(6) gives discretion to the Assessing Officer. If he has exercised such discretion, the court is not supposed to judge the sufficiency of reasons for exercising discretion one way or the other. Therefore, no interim order at this stage could be asked for. He prays for time to file affidavit -in -opposition. Search and seizure :
(3.) After having heard learned counsel for the parties on the question of interim order, it seems that so far as the search and seizure is concerned, no interim order could be granted at this stage. The question depends on the basis of the material that will be produced before the court or the appropriate forum. Therefore, no interim order is called for in respect of search and seizure at this stage. Scope of ambit of Sec. 220(6) :;