PRADEEP RATANSHI Vs. ASSISTANT COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE petitioner, on being assessed to income-tax for the year 1992-93 by exhibit P-2 assessment order, filed an appeal with the third respondent in exhibit P-3 on April 5, 1995, and also filed a stay petition exhibit P-3(a) for stay of the recovery of the amount of tax covered by exhibit P-2. It is now stated that the petitioner later on April 10, 1995, filed exhibit P-4 before the Commissioner of Income-tax, Ernakulam, purporting to be a petition under Sub-section (6) of Section 220 of the Income-tax Act, 1961. THE Commissioner of Income-tax on the said petition passed an order exhibit P-5 directing the petitioner to pay 50 per cent. of the demand by July 31, 1995, and the balance in five equal monthly instalments from August, 1995. THE petitioner now submits that recovery proceedings have also been initiated by exhibit P-6. On receipt of the revenue recovery notice he has also filed a petition exhibit P-7 before the third respondent requesting him to dispose of his appeal at an early date as any delay in the said disposal will cause prejudice.

(2.) I have heard counsel for the petitioner and standing counsel for the Income-tax Department and perused the records. In my view, the order exhibit P-5 passed by the Commissioner of Income-tax is one without jurisdiction. It is not in dispute that the petitioner filed a petition under Sub-section (6) of Section 220 requesting the Commissioner of Income-tax not to treat him as a defaulter and on that request exhibit P-5 came to be passed. A reading of Sub-section (6) of Section 220 will show that the discretion to be exercised under the said sub-section can only be exercised by the Assessing Officer and npt by the Commissioner of Income-tax. As the order was passed by the Commissioner of Income-tax without jurisdiction, I am of the view that the order exhibit P-5 has to be set aside and accordingly it is set aside.

(3.) THIS original petition is disposed of with the above directions.