Clarification F. No. 404/10/2009-ITCC issued by CBDT dated 1.12.2009

(i) Clarification to Instruction number 95 was
issued on 14/09/1970 stating that it relates to disputed demands only,

(ii) Instruction number 635 was issued on
12/11/1973 stating that stay should be granted only in those cases where
demands are attributable to substantial points of dispute.

(iii) Clarification to Instruction number 95
dated 13/07/1976 held that the Instruction becomes operative only in cases
where there are no lapses on the part of the assessee.

(iv) Instruction number 1067 dated 21/06/1977
held that the ITO can pass the necessary orders u/s.220(6) in all cases except
cases under section 144A or 144B where the approval of IAC is required.

(v) Instruction number 1158 dated 27th March,
1978 held that in suitable cases the assessee may be allowed to furnish
security.

(vi) Instruction number 1282 dated 4th October,
1979 held that requests should be made to CIT(A) and ITAT for early disposal
of appeals and constant watch should be kept on progress of appeals.

(vii) Instruction number 1362 was issued on
15/10/1980 in supersession of all the earlier Instructions. It was an
Instruction covering the issue in detail and in para 4 of the same there was a
clear reference to the proposition laid down in Instruction number 95 which is
as follows :-

(i) It shall be the responsibility of the
Assessing Officers and the TRO to collect every demand that has been raised,
except the following :

(a) Demand which has not fallen due;

(b) Demand which has been stayed by a Court or
ITAT or Settlement Commission;

  c) Demand for which a proper proposal for write off has been submitted;

  d)  Demand stayed in accordance with para B & C below.

  ii)  Where demand in respect of which a Recovery Certificate has been issued or a statement has been drawn, the primary responsibility for the collection of tax shall rest with the TRO.

  iii)  It would be the responsibility of the supervisory authorities to ensure that the Assessing Officers and the TROs take all such measures as are necessary to collect the demand. It must be understood that mere issue of a show cause notice with no follow up is not to be regarded as adequate effort to recover taxes.

 B.   Stay petitions :

i)    Stay petitions filed with the Assessing Officers must be disposed of within two weeks of the filing of petition by the tax payer. The asses-see must be intimated of the decision without delay.

ii)    Where stay petitions are made to the authori-ties higher than the Assessing Officer (DC/ CIT/CC), it is the responsibility of the higher authorities to dispose of the petitions without any delay, and in any event within two weeks of the receipt of the petition. Such a decision should be communicated to the assessee and the Assessing Officer immediately.

iii)    The decision in the matter of stay of demand should normally be taken by Assessing Officer/TRO and his immediate superior. A higher superior authority should interfere with the decision of the AO/TRO only in exceptional circumstances e.g. where the assessment order appears to be unreasonably high pitched or where genuine hardship is likely to be caused to the assessee. The higher authorities should discourage the assessee from filing review petitions before them as a matter of routine or in a frivolous manner to gain time for withholding payment of taxes.

C.    Guidelines for staying demand

i)    A demand will be stayed only if there are valid reasons for doing so. Mere filing an appeal against the assessment order will not be sufficient reason to stay the recovery of demand. A few illustrative situations where stay could be granted are –

  a)  If the demand in dispute relates to issues that have been decided in assessee’s favour by an appellate authority or court earlier; or
 

    If the demand in dispute has arisen because the Assessing Officer had adopted an interpretation of law in respect of which there ex-ist conflicting decisions of one or more High Courts (not of the High Court under whose jurisdiction the Assessing Officer is working); or

 b)   If the High Court having jurisdiction has adopted a contrary interpretation but the Department has not accepted that judgment.

c) It is clarified that in these situations also, stay may be granted only in respect of the amount attributable to such disputed points. Further, where it is subsequently found that the assessee has not cooperated in the early disposal of appeal or where a subsequent pronouncement by a higher appellate authority or court alters the above situation, the stay order may be reviewed and modified. The above illustrations are, of course, not exhaustive.

  ii)  In granting stay, the Assessing Officer may impose such conditions as he may think fit. Thus he may.

  a)  require the assessee to offer suitable security to safeguard the interest of revenue;

  b)  require the assessee to pay towards the dis-puted taxes a reasonable amount in lumpsum or in instalments;

c)    require an undertaking from the assessee that he will co-operate in the early disposal of appeal failing which the stay order will be cancelled;

 d)   reserve the right to review the order passed after expiry of reasonable period, say upto 6 months, or if the assessee has not co-operated in the early disposal of appeal, or where a subsequent pronouncement by a higher appellate authority or court alters the above situations;

e) reserve a right to adjust refunds arising, if any against the damand;

 iii)   Payment by installments may be liberally allowed so as to collect the entire demand within a reasonable period not exceeding 10 months.

 iv)   Since the phrase ‘stay of demand’ does not occur in Section 220(6) of the Income-tax Act, the Assessing Officer should always use in any order passed under section 220(6) [or under section 220(3) of section 220(7)], the expression that occurs in the section viz, that the agrees to treat the assessee as not being in default in respect of amount specified, subject to such conditions as he deems fit to impose.

 v)   While, considering an application under Section 220(6), the Assessing Officer should consider all relevant factors having a bearing on the demand raised and communicate his decision in the form of a speaking order.

  D.  Miscellaneous :

  i)  Even where recovery of demand has been stayed, the Assessing Officer will continue to review the situation to ensure that the condi-tions imposed are fulfilled by the assessee failing which the stay order would need to be withdrawn.

  ii)  Where the assessee seeks stay of demand from the Tribunal, it should be strongly opposed. If the assessee presses his application, the CIT should direct the departmental representative to request that the appeal be posted within a month so that Tribunal’s order on the appeal can be known within two months.

   iii) Appeal effects will have to be given within 2 weeks from the receipt of the appellate order. Similarly, rectification application should be decided within 2 weeks of the receipt thereof. Instances where there is undue delay in giving effect to appellate orders, or in deciding rectification applications, should be dealt with very strictly by the CCITs /CITs.

  4.  The Board desires that appropriate action is taken in the matter of recovery in accordance with the above procedure. The Assessing Officer or the TRO, as the case may be, and his immediate superior officer shall be held responsible for ensuring compliance with these instructions.

  5.  This procedure would apply mutatis mutandis to demands created under other Direct Taxes enact-ments also.