2013 (7) TMI 773

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....hority under Section 220 (6) of the said Act in not treating the assessee as defaulter in respect of an amount in dispute in the appeal. On a proceedings being initiated a demand was raised to the tune of Rs.145,78,10,912/- and the assessee assailed the said order before the Commissioner of Income Tax (appeals) (XXXVI), Calcutta. In the said appeal an application for stay was moved, but CIT (appeals) did not entertain the said application, which compelled the assessee to approach this Court by filing a writ petition being WP 1359 (W) of 2013. By consent of the parties the said writ petition was disposed of with a direction upon the Commissioner of Income Tax, Calcutta to decide the matter in accordance with law and the respondents the....

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....owever, submits that although the power vested upon the said Assessing Officer is to be exercised in appropriate cases and the discretion is left to the said authority, which should have been exercised judiciously and not capriciously. Learned advocate further submits that if the amount so demanded is so exorbitant or huge, the Assessing Officer should exercise the discretion in treating the assessee as non-defaulter in respect of the amount in dispute in the appeal and placed reliance upon a judgement of this Court in case of Aluminium Corporation of India Ltd. vs. C. Balakrishnan & Ors. reported in Vol. XXXVII Income Tax Reports, 267. What could be culled out from the aforesaid submissions that discretion is left to the Assessing Autho....

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....olves consideration of the facts and circumstances of the case in all respects. There is no quarrel to the proposition as laid down in the said report that the position of the economic circumstances of assessee is one of the factors to be considered while granting relief under Section 220 (6) of the said Act. What could be culled out from the said report is that it is the discretion, which is left to the said authority and such discretion should be exercised judiciously. The Writ Court should not normally interfere with the discretionary order, unless it is demonstrated that the said discretion has been exercised capriciously and the decision is based upon no evidence and/or beyond the legal sphere of law. The court at the time of pas....