THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B. LOKUR AND THE HON’BLE SHRI JUSTICE SANJAY KUMAR WRIT PETITION No.31382 OF 2011 DATED:29-12-2011 Between: Bothra Shipping Services, Visakhapatnam. … Petitioner And The Income Tax Officer, Visakhapatnam and another. … Respondents THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B. LOKUR AND THE HON’BLE SHRI JUSTICE SANJAY KUMAR Writ Petition No. 31382 of 2011 ORDER: (per the Hon’ble the Chief Justice Shri Madan B. Lokur) 1. The petitioner is aggrieved by an order dated 16.8.2011 passed by the Income Tax Officer (International Taxation), Visakhapatnam. 2. The petitioner had filed an application on 11.8.2011 for stay of recovery of tax demanded by the respondents. 3. That application was considered by the Income Tax Officer (International Taxation) and vide his order dated 16.8.2011, the application was rejected. 4. The Officer has stated that merely because the petitioner has filed an appeal against the assessment order is no reason to stay recovery of the demand in terms of Instruction No. 1914 issued by the Central Board of Direct Taxes on 2.12.1993. This view is unexceptionable. 5. However, the Officer has also relied upon Circular No. 530, dated 6.3.1989 of the Central Board of Direct Taxes, particularly, paragraphs-2 and 3 thereof, and has held that since the petitioner did not fall within the categories mentioned in paragraph-2 or paragraph-3 of the Circular, it was not entitled to any interim relief. 6. Learned counsel for the Revenue has placed before us Circular No. 530, dated 6.3.1989 and we find that paragraph-4 thereof, is equally relevant and this reads as follows: “In respect of other cases not covered by para 2 above, the Assessing Officer will take into account all the relevant factors and communicate his decision to the assessee in the form of a speaking order. While exercising discretion under this provision, the financial capacity of the assessee to pay the demand will not be relevant. “ 7. We find that the Income Tax Officer has not at all adverted to the relevant factors while disposing of the application for stay. He has merely considered the contents of paragraphs 2 and 3 of the Circular No. 530, dated 6.3.1989 and has mechanically rejected the stay application filed by the petitioner. 8. Under the circumstances, we have no option but to set aside the order dated 16.8.2011 and direct the Income Tax Officer (International Taxation), Visakhapatnam to reconsider the application for stay filed by the petitioner on11.8.2011 and pass a speaking order thereon after considering all the relevant factors as provided in Circular No. 530, dated 6.3.1989. 9. Until a decision is taken on the stay application, the respondents will not use coercive measures to recover the tax said to be due. 10. The writ petition is disposed of in the above terms. 11. The miscellaneous application is also disposed of. MADAN B. LOKUR, CJ SANJAY KUMAR, J 29-12-2011 pnb