- (1.) The important question which requires consideration in the present case is as to whether the first appellate authority, namely, Commissioner of the Income Tax (Appeals) or Deputy Commissioner (Appeals) under Income Tax Act, 1961, (for short hereinafter referred to as 'Act') have power to grant stay and decide the stay application filed along-with appeal/s filed before them under Section 246/246A of Act respectively or not. The concomitant question, which would arise is whether the power of the Assessing Officer under Section 220 (6) of the Act of 1961 to grant stay is there with the Assessing Authority during the pendency of the appeal before the appellate authority; and how such powers of 'treating the assessee as not being in default in respect of amount in dispute in the appeal', have to be exercised by such Assessing Officer under Section 220 (6) of the Act.
(2.) Before coming the provisions of the Act and interpretation thereof, a brief look at the facts in which the present writ petition arises would be necessary.
(3.) The petitioner-assessee, M/s Maheshwari Agro Industries, Jodhpur, engaged in the business of manufacturing and trading of oils, for assessment year 2008-09, as a partnership firm filed its return of income through e-filing system on 30.09.2008 declaring the income of Rs.3,48,140/-. Initially, the case was processed under Section 143 (1) of the Act on 22.04.2009 on refund, however, the case of the assessee was selected for scrutiny, since a survey was conducted on 18.0.3.2007 at the business place of the petitioner under Section 133-A of the Act, his case was fixed for assessment upon scrutiny, and accordingly, a notice under Section 143 (2) of the Act was issued to him on 24.04.2009. The assessee produced relevant record and Books of Accounts before the Assessing Authority and the Assessing Authority ultimately passed the impugned assessment order Annex-1 for the said Assessment Year 2008-09 on 20.12.2010 and making additions in the declared income of Rs.3,48,140/-, the total income assessed by the Assessing Authority was to the tune of Rs.1,44,42,320/-. The interest under the provisions of Sections 234A, 234B, 234C, 244A (3) and 234D was charged separately, and also penalty proceedings under Section 271 (1) (c) of the Act for concealment of income were initiated separately. The nature of the additions in the declared income was briefly likely this: Income as declared in the return Rs.3,48,140/- Add: Excess stock and cash found during the course of survey. Rs.14,77,127/- Add: Trading addition . Rs.1,21,17,057/- Add: Disallowed out of P&L . Rs.5,00,000/- Total Rs.1,44,42,324/- Total Income round off- Rs.1,44,42,320/- ;