TaxTMI 
TaxTMI 
2025 (11) TMI 99
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....ay and directed the assessee to deposit 20% of entire demand in light of CBDT circular vide O.M. No. 404/72/93-ITCC dated 29.02.2016 and its amendment dated 31.07.2017. 4. The said application of the assessee was disposed of by an order dated 11.03.2019 directing the assessee to pay 20% of the total demand, and observing that mere filing of appeal against assessment order cannot be considered as sufficient reason for stay of demand, and that the stay will operate on payment of 20% of the total demand. The relevant part of the order reads thus: "2. An opportunity of being heard on the above matter has been provided by the undersigned on 13.02.2019. On 13.02.2019, Sh. Praveen Jain, CA attended and he was directed to pay the 20% of demand within one week, failing which coercive action will be taken and stay petition was rejected. However, till date you have deposited only 10% of outstanding demand. Hence, you are directed to pay 20% of total demand (balance 10%) in the case immediately, as mere filing of appeal against the assessment order cannot be considered as sufficient reason for stay of demand." 5. Against the said order, the assessee filed a petition bearing no. ....
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....not convinced. Even if the assessment is High Pitched, the assessee is being asked to pay only 20% of the demand, moreover the assessee has not given any evidence regarding his weak financial position. 6. Keeping in view the facts stated above, the assessee's request for stay of recovery of demand till disposal of its first appeal is hereby rejected." (emphasis supplied) 8. The aforesaid order dated 05.04.2019 passed by the respondent was again challenged by the assessee by filing a writ petition [W.P. (C) 4238/2019]. The Hon'ble Division Bench of this Court vide order dated 24.04.2019 observed that the order passed on 05.04.2019 is a mere reiteration of the earlier order dated 11.03.2019 which had been set aside by the Court, without furnishing any reason in terms of the Court's order dated 29.03.2019. Accordingly, the Court formed a prima facie opinion that the respondent is actually in contempt of the Court's order dated 29.03.2019. 9. Consequently, notice was issued to the respondent calling upon her to state as to why contempt proceedings not be drawn upon her for wilful disobedience of the Court's order dated 29.03.2019. The relevant excerpts of the or....
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.... the respondent contained reason, though not too elaborate. Expanding on his submission, he submits that the opinion formed by the respondent that assessee should pay at least 20% of the entire demand is based on CBDT circular being OM No. 404/72/93-IPCC dated 29.02.2016 and its amendment dated 31.07.2017. 16. He submits that the said circular clearly stipulates that the assessing officer shall normally grant stay of demand till the disposal of first appeal on payment of 20% of the disputed demand, and the respondent had passed order on similar lines. 17. He further contends that besides predicating the decision on aforesaid circular, the respondent had considered sound financial condition of the assessee based on returns of Assessment Years 2011-12 to 2016-17. It is only after recording the finding that the assessee has not given any evidence regarding his weak financial position, respondent had rejected the request of assessee for stay of recovery of demand, as the assessee had paid only 10% of the demand, and he had failed to pay at least 20% of the entire demand. 18. In support of his submission, Mr. Bhatia relied upon the decision of Hon'ble Division Bench of this Cou....
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.... purpose but the act or omission has to be judged having regard to the facts and circumstances of each case. 26. In Dinesh Kumar Gupta v. United India Insurance Co. Ltd. & Ors., (2010) 12 SCC 770, in the context of civil contempt, the Hon'ble Supreme Court observed that the position reflected in a catena of decisions is that contempt of a civil nature can be held to have been made out only if there has been a willful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. The Court also made following pertinent observations which are relevant in the context of present case: "23. Besides this, it would also not be correct to overlook or ignore an important statutory ingredient of contempt of a civil nature given out under Section 2(b) of the Contempt of Courts Act, 1971 that the disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order ....
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....ng in contempt, simply because he committed an error of judgment or the order passed by him is in excess of authority vested in him. 27.2. It was emphasized that the error must be a willful error proceeding from improper or corrupt motives in order that he may be punished for contempt of Court. 28. Now coming back to facts of the present case, it is to be noted that the earlier order dated 11.03.2019 passed by the respondent was set aside by Hon'ble Division Bench of this Court in W.P.(C) 2830/2019 on the ground that the respondent had not furnished any reasons indicating as to why the exercise of discretion cannot be done in favour of the assessee for imposition of condition of less than 20% of demand, and a direction was given to the respondent to pass a fresh order in accordance with law. 29. Sequel to above, the respondent passed a fresh order dated 05.04.2019, however, the assessee impugned the said order as well, by filing another writ petition being W.P.(C) 4238/2019. 30. In the said petition, the Hon'ble Division Bench observed that the order passed by respondent on 05.04.2019 is a mere reiteration of the earlier order dated 11.03.2019 which had been set aside. ....
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.... search or survey operation, etc.) or, (b) the assessing officer is of the view that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount lower than 15% is warranted (e.g. in a case where addition on the same issue has been deleted by appellate authorities in earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of the assessee, etc.), - the assessing officer shall refer the matter to the administrative Pr. CIT/ CIT, who after considering all relevant facts shall decide the quantum/ proportion of demand to be paid by the assessee as lump sum payment for granting a stay of the balance demand." OM dated 25.08.2017 Vide Board's O.M of even number dated 31.7.2017, modifications were made to O.M. NO.404/72/93-ITCC dated 29-2-2016, to the effect that the standard rate prescribed in O.M. dated 29-2-2016 stood revised to 20% of the disputed demand, where the demand was contested before CIT (A). It is hereby clarified that the modifications laid down in Board's O.M. dated 31-7-2017 are prospective in nature and (natters already decided as per Board's O.M. of even number da....