VIP Road Chartered Accountants Association

Specimen Drafts of Applications/Petitions

Specimen Draft: Stay Application to Assessing Officer-I

16-12-2003

The Assistant Commissioner of Income Tax
Circle 4(1),
Mumbai

Dear Sir,

Sub : Request to keep the demand in abeyance.

Ref : Your Order under section 143(3) dated for A.Y. 2001-02

PAN :

Your goodself has served Notice of Demand on 20-11-2003 for Rs. 17,50,123 for A.Y. 2001-02. In this connection, we submit as under:

The demand of Rs. 17,50,123 is very high by any standard and we cannot bear the burden of such a high amount.

We have co-operated fully in the course of assessment proceedings.

We have gone into appeal against your Order under section 143(3)(i). For your information, we enclose herewith a photocopy of duly acknowledged letter along with which the appeal papers have been filed with the office of the Hon’ble Commissioner of Income Tax (Appeals)-V, Mumbai. We firmly believe that we have very good case of getting the appeal allowed.

Keeping in view the above facts and circumstances, kindly keep the entire demand of Rs. 17,50,123 in abeyance till the disposal of the appeal by Hon’ble Commissioner of Income Tax (Appeals).

We hereby request your goodself to give us personal hearing in the matter before passing any order in this behalf.

Thanking you

Yours faithfully,
For XY Limited

Director

Encl: As Above

Specimen Draft: Stay Application to Assessing Officer-II

20-12-2003

The Assistant Commissioner of Income Tax
Circle 4(1),
Mumbai

Dear Sir,

Sub : Request to keep the demand in abeyance.

Ref : Your Letter dated 18-12-2003 for A.Y. 2001-02

PAN :

We are thankful to you for providing us an opportunity to represent our case before your goodself in person in respect of demand of Rs. 17,50,123 under section 156 for A.Y. 2001-02.

Further to our written submissions dated 16-12-2003 for keeping the demand in abeyance, we emphatically submit that the demand of Rs. 17,50,123 is very high by any standard and we cannot bear the burden of such a high amount.

Nevertheless, we have co-operated fully in the course of assessment proceedings and we are keen to continue extending our full co-operation even in the matter of payment of dues under section 156. We are ready to pay 25% of total outstanding demand of Rs. 17,50,123, i.e., Rs. 4,37,500 in 4 equal instalments of Rs. 1,09,375 each on 25-12-2003, 25-1-2004, 25-2-2004 and 25-3-2004.

As we have gone into appeal against your Order under section 143(3)(i), kindly keep the remaining demand of Rs. 13,12,623 (75%) in abeyance till the disposal of the appeal by the Commissioner of Income Tax (Appeals).

Also, we have requested the Commissioner of Income Tax (Appeals)–V to grant us an "out of turn" hearing on the matters under appeal within a week from now. A photocopy of this request letter is enclosed for your information.

Thanking you

Yours faithfully,
For XY Limited

Director

Encl: As Above

Specimen Draft: Request to CIT (Appeals) to Expedite Hearing

20-12-2003

The Commissioner of Income Tax (Appeals)-V,
Mumbai.

Dear Sir,

Sub : Request to expedite hearing

Ref : Appeal papers filed against Order under section 143(3)(i) for A.Y. 2001-02

PAN :

We have already filed appeal against Order under section 143(3)(i) for A.Y. 2001–02 with your office on 15-12-2003.

We emphatically submit that the said demand of Rs. 17,50,123 is very high by any standard and we cannot bear the burden of such a high amount. The said payment will cause undue hardship and put us under great financial pressure. We are already put under pressure by the Assessing Officer for payment of the said amount immediately.

Also, we firmly believe that we have very good case of getting the appeal allowed.

In the background of above facts, we hereby request your goodself to grant us an "out of turn" hearing on the matters under appeal within a week from now.

Expecting your kind co-operation.

Thanking you

Yours faithfully,
For XY Limited

Director

Specimen Draft: Stay Application to CIT (Adm)

22-12-2003

The Commissioner of Income Tax-4,
Mumbai.

Dear Sir,

Sub : Request to Stay demand under section 156

Ref : Order under section 143(3)(i) for A.Y. 2001-02

PAN :

The ACIT, Circle 4(1), Mumbai vide his letter dated 21-12-2003 has already rejected our Stay Application against demand under section 156 for A.Y. 2001-02. He has asked us to pay the full amount of demand immediately. Hence, we apprehend coercive and unreasonable action on his part for recovery of the demand under section 156 which will cause undue hardship and put us under financial pressure.

There is prima facie case in our favour that various disallowances/additions made by the ACIT may be substantially reduced in appeal.

A very important issue u/s. ________ which requires interpretation of law is pending with the ITAT in respect of earlier year.

The demand under section 156 for the year under appeal is very high, i.e., Rs. 17,50,123. We emphatically submit that the said demand of Rs. 17,50,123 is very high by any standard and we cannot bear the burden of such a high amount. The said payment will cause undue hardship and put us under great financial pressure.

We have co-operated fully in the course of assessment proceedings and we are keen to continue extending our full co-operation even in the matter of payment of dues under section 156. We are ready to pay 25% of total outstanding demand of Rs. 17,50,123, i.e., Rs. 4,37,500 in 4 equal instalments of Rs. 1,09,375 each on 25-12-2003, 25-1-2004, 25-2-2004 and 25-3-2004. We had requested the Assessing Officer also for similar payment, but he has not acceded to our said request.

As we have gone into appeal against the Order under section 143(3)(i) and we firmly believe that we have very good case of getting the appeal allowed, kindly keep the remaining demand of Rs. 13,12,623 (75%) in abeyance till the disposal of the appeal by the Commissioner of Income Tax (Appeals).

Also, we have requested the Commissioner of Income Tax (Appeals) – V to grant us an "out of turn" hearing on the matters under appeal at the earliest.

We enclose for your information a photocopy of our letters dated 16-12-2003 and 20-12-2003 addressed to the Assessing Officer requesting to keep the demand in abeyance, our letter dated 20-12-2003 addressed to the Commissioner of Income Tax (Appeals)-V requesting for an "out of turn" hearing and letter dated 21-12-2003 of the Assessing Officer rejecting our Stay Application.

Thanking you

Yours faithfully,
For XY Limited

Director

Encl: As Above

Specimen Draft: Stay Application to CIT (Appeals)

22-12-2003

The Commissioner of Income Tax (Appeals) – V,
Mumbai.

Dear Sir,

Sub : Request to Stay demand under section 156 and expedite hearing

Ref : Appeal papers filed against Order under section 143(3)(i) for A.Y. 2001-02

PAN :

We have already filed appeal against Order under section 143(3)(i) for A.Y. 2001-02 with your office on 15-12-2003.

The Assessing Officer ("AO") has already rejected our Stay Application against demand under section 156 for A.Y. 2001-02. He has asked us to pay the full amount of demand immediately. Hence, we apprehend coercive and unreasonable action on his part for recovery of the demand under section 156 which will cause undue hardship and put us under financial pressure.

As the appeal is pending before your goodself, we hereby request you to keep the demand in abeyance till the appeal is disposed of by your goodself and issue necessary directions to the AO in this behalf.

Also, we firmly believe that we have very good case of getting the appeal allowed.

In the background of above facts, we also hereby request your goodself to grant us an "out of turn" hearing on the matters under appeal at the earliest.

Expecting your kind co-operation.

Thanking you

Yours faithfully,
For XY Limited

Director

Specimen Draft: Objection by Garnishee u/s. 226(3)(vi)

27-1-2004

The Assistant Commissioner of Income Tax
Circle 4(1),
Mumbai

Dear Sir,

Sub : Objection under section 226(3)(vi) of the Act

Ref : Notice under section 226(3) of the Act

Reg : Mr. X (Assessee)

With reference to the aforesaid notice under section 226(3) (Garnishee Notice) of the Income-tax Act, 1961 requesting us to pay to AO/TRO, either forthwith upon the money becoming due or being held or within time specified in notice, so much of money as is sufficient to pay amount due by above captioned assessee Mr. X in respect of his arrears of taxes.

We hereby object under section 226(3)(vi) that the sum demanded as above or any part thereof is not due to the said assessee (or that we do not hold any money for or on account of the said assessee).

Our Statement on Oath as required under section 226(3)(vi) of Act is also enclosed.

In view of aforesaid, we humbly request to revoke the aforesaid notice issued under section 226(3).

We are aware that if it is discovered that aforesaid statement is false in any material particular, we will be personally liable to AO/TRO to the extent of our liability to the assessee, if any, on the date of the notice or assessee’s liability for sum due under the Act, whichever is less.

Kindly consider the above objection and issue the Order accordingly at the earliest.

Expecting your kind co-operation.

Thanking you

Yours faithfully,
For XY Limited

Director

Encl: Statement on Oath

(On Non-Judicial Stamp Paper of Prescribed Amount)

STATEMENT ON OATH

I, AB, Director of XY doth hereby solemnly state as follows:

I say that XY Limited has received the notice under section 226(3) of IT Act, 1961 issued by AO/TRO, Circle 4(1), Mumbai on 20.01.2004.
I say that the sum demanded or any part thereof as mentioned in the said Notice is not due to assessee, Mr. X from XY Limited.

AND/OR

I say that XY Limited does not hold any money for or on account of assessee, Mr. X.
I say that this Statement on Oath has been prepared for submitting it before the Income-tax authorities, forming part of objections raised under section 226(3)(vi) of IT Act, 1961.
I further submit that if this Statement is found false in any material particular, I will be personally liable to AO/TRO to the extent of liability of XY Limited to the Assessee or assessee’s liability for sum due under the IT Act, 1961.
I say that whatever is stated hereinabove and objection letter dated 27.01.2004 to AO/TRO under section 226(3)(vi) of IT Act, 1961, is true to the best of my knowledge and I believe the same to be true.

Solemnly affirmed at Mumbai on this 27th day of January, 2004.

AB, Director of XY Limited	BEFORE ME
DEPONENT Witnesses: 1) 2) Identified by me	SEAL of Magistrate OR NOTARY

Specimen Draft: Request to AO to extend time for payment u/s. 226(3)(vii)

27-1-2004

The Assistant Commissioner Of Income Tax
Circle 4(1),
Mumbai

Dear Sir,

Sub : Request for extension of time for making payment under section 226(3)(vii) of the Act

Ref : Your Notice under section 226(3) of the Act

Reg : Mr. X (Assessee)

With reference to the above captioned Notice under section 226(3) of IT Act, 1961 requiring us to pay to the AO/TRO either forthwith upon money becoming due or within the time specified in the notice so much amount as is sufficient to pay the amount due by Mr. X (assessee) in respect of his arrears of tax due.

In pursuance of aforesaid notice and in compliance thereof, the following sum is already deposited to the credit of Central Government:

Sr.	Challan No.	Date	Name of Bank & Receipt No.	Rupees
1.
2.
3.
4.

				Total

However, the period mentioned in Notice under section 226(3) is not sufficient to pay the total sum demanded in notice. In view of this, we hereby request you to extend the time for making payment in pursuance of aforesaid notice. This request is made in accordance with the provisions of section 226(3)(vii) the Act.

Kindly extend the time for payment under section 226(3)(vii) and issue receipt of the amount already paid so far at earliest.

Expecting your kind co-operation.

Thanking you

Yours faithfully,
For XY Limited

Director

Specimen Draft: Stay Application Before Hon’ble ITAT
[(Section 253(7) Read With Rule 35A of Appellate Tribunal Rules, 1963]

27-1-2004

The Registrar
The Income Tax Appellate Tribunal
Old C.G.O. Building, 3rd Floor,
M. K. Marg,
Mumbai 400 020.

Dear Sir,

Sub: Filing of Stay Application under Rule 35A of Appellate Tribunal Rules, 1963 for A. Y. 2001-2002

Ref: ITA No. —— /M/2003 for A. Y. 2001-2002 filed on 15-1-2004 and Pending at present

We enclose herewith an application, in triplicate, under Rule 35A of Appellate Tribunal Rules, 1963 for A. Y. 2001-2002 and for the purpose, we enclose the following papers:

Stay Application in Appendix X duly filled in and signed along with Annexure thereto.
Stay Petition, in triplicate, duly verified.
Certified copy of Order under section 143(3)(i) dated 15.12.2003 (Exhibit "A").
Copy of Order of CIT(A) for A. Y. 1999-2000 (Exhibit "B").
Copy of Order of ITAT for A. Y. 1999-2000 (Exhibit "C").
Copy of correspondence with AO/ACIT/CIT rejecting Stay Application (Exhibit "D"/"E").
List of Securities offered (Exhibit "F").
Affidavit of Applicant.
Duly paid tax challan of Rs. 500 towards Tribunal Fees under section 253(7) of the Act (Original).

The Appellant Company received the Order under section 250 of CIT (A)-V on 20-1-2004 and hence the filing of this appeal under section 253 is well within the time limit prescribed under the provisions of that section.

We trust you find the same in order.

Thanking you,

Yours faithfully,
For M/s. _____________

Proprietor

Encl: As Above

Stay Application

APPENDIX - X

In the Income tax Appellate Tribunal
————— Bench
Stay application No. ————of ———
In the case of ———————
For the Assessment Year(s) ————

Under the ————— ACT, ————— for Stay of recovery of tax

The Humble Application of the Petitioner Abovenamed, Most respectfully shOweth:

The Petitioner is engaged in the business of wholesale trade of textile goods. The Petitioner had filed Return of Income for AY 2000-01 on 13th August, 2000 showing the income of Rs. 2,50,968. The Petitioner had maintained regular Books of Account and same were audited under section 44AB of the Income Tax Act, 1961. For earlier AY 1999-2000, book results had been accepted by the Income Tax Department. The ACIT, Circle ——— vide his Order dated ____ rejected the Books of Account saying that the method of accounting is defective and estimated the profit under section 145 of the Act at 9% of the Gross Receipts and assessed income at Rs. 4,50,500. A copy of Assessment Order passed by ACIT for A.Y. 2000-01 is enclosed and marked Exhibit "A".
Against the Order of ACIT aforesaid, the Petitioner had filed on appeal before CIT(A) on dated 15-4-2002. The CIT(A) vide his Order dated 18th November, 2003 reduced the estimated income at 6% of gross receipts and confirmed the balance additions made by AO/ACIT.
For an earlier year, namely, A.Y. 1999-2000, the CIT(A), on same facts, had accepted the book result as well as profit disclosed at the rate of 4% vide his Order dated 30-3-2002. The same Order was also subject matter of further appeal by the Department before Hon’ble ITAT and Hon’ble ITAT had confirmed the Order of the CIT(A) on facts and circumstances of case vide its Order dated 16th January, 2004. A copy of Order passed by CIT(A) and ITAT is enclosed and marked Exhibit "B" and "C" respectively.
The Petitioner had preferred the appeal against the Order of CIT(A) before the Hon’ble ITAT for A.Y. 2000-01 also vide ITA No. ——/M/2003 on 15th December, 2003 and the same is pending before SMC Bench.
The Petitioner submits that the estimate of income at 6% is highly excessive and unreasonable. Also, book result for earlier year A.Y. 1999-2000 had been accepted by the Income Tax Department and Hon’ble Tribunal.
The Petitioner submits that pending of appeal before ITAT for AY 2000-2001 was highlighted to the ACIT and he was requested to keep the demand in abeyance till the disposal of appeal by Income Tax Appellate Tribunal. An application was filed before the ACIT on dated 16 December, 2003. However, he vide his Order dated 12th January, 2004 has rejected the application and refused to keep the demand in abeyance till the disposal of appeal pending before Hon’ble ITAT. A copy of Order passed by the ACIT is enclosed and marked Exhibit "D".
The Petitioner further submits that a similar request to grant Stay was filed before the CIT vide letter dated 16 December, 2003. However, the CIT vide his Order dated 19th January, 2004 has rejected the application A copy of Order passed by the CIT is enclosed and marked Exhibit "E".
The Petitioner humbly submits that if the Department proceeds further to recover the tax in dispute, great amount of inconvenience will be caused to the Petitioner. At present, the Petitioner has been facing too much liquidity crunch in view of slump in fabrics industry and exhausting the overdraft facility with the bank.
The Petitioner is ready to offer the stock of finished goods and certain other assets of our business as security to the Income Tax Department. A list of such securities is enclosed and marked Exhibit "F".
The Petitioner, therefore, prays that:
1. The recovery proceedings against the Petitioner may be stayed by the Order of this Hon’ble Income Tax Appellate Tribunal till the pendency of appeal.
2. The early hearing of ITA No. ———/M/2003 for AY 2000-01 may please be granted.
3. The ACIT and the CIT or their subordinate officers be restrained from taking any steps for recovery of tax, interest, etc. levied by Notice of Demand under section 156 for AY 2000-01.

I ABC , proprietor of M/s ________________, Mumbai doth hereby state that whatever is stated in Para 1 to 10 of Stay Petition is true to best of my knowledge and information.

For M/s. _____________

Proprietor

Place:
Date:

AFFIDAVIT

(Accompanied by Stay Petition)

I, _____, Proprietor of M/s. _____________, Mumbai, solemnly state as under:

I have filed the Return of Income for A.Y. 2000-01 declaring total income of Rs. 2,50,968 on 13th August, 2000.
The ACIT assessed the income at Rs. 4,50,5000 vide his Order dated 10-3-2002 and estimated profit at 9% of the Gross Receipts.
The CIT(A) has vide his Order dated 18th November, 2003 reduced profit at 6% of the Gross Receipts.
Being aggrieved by the Order of CIT(A) dated 18th November, 2003, I have filed the appeal before Hon’ble ITAT on 15th December, 2003 vide ITA No. ———/M/2003 which is pending before Hon’ble ITAT.
In view of earlier year’s Order for AY 1999-2000 passed by Hon’ble ITAT vide its Order dated 16th January, 2004 which, inter alia, accepted the book results and reduced the profit to 4% of the Gross Receipts. Therefore, I have fair chance of succeeding in appeal before Hon’ble ITAT.
I am ready to offer the finished goods of stock as well as certain other assets of the business as security for satisfaction of tax demand towards the tax due in respect of disputed additions.

I say that what ever is stated in hereinabove and in Stay Petition is true to best of my knowledge and belief.

Solemnly affirmed at Mumbai on this 27th day of January, 2004.

AB, Proprietor of M/s ____________

DEPONENT	BEFORE ME
	SEAL of Magistrate OR NOTARY
Witnesses: 1) 2) Identified by me

Prescribed Format of Application for Grant of Stay by ITAT

STAY APPLICATION

APPENDIX - X

In the Income tax Appellate Tribunal
————— Bench
Stay application No. ————of ———
In the case of ———————
For the Assessment Year(s) ————
Under the ————— ACT, ————— for Stay of recovery of tax

1.	Name and address of the applicant		:
2.	Act under which the demand is raised (i.e. Income-tax, etc. for which stay application is moved)		:
3.	Assessment year(s) involved		:
4.	Date of filing of appeal before the Tribunal and its number, if known		:
5.	From the demand give break up		:
	Tax		:
	Interest		:
	Penalty		:
	Fine		:
	Others		:
6.	(a)	Amount already paid	:
	(b)	Amount outstanding	:
	(c)	Amount which is not disputed out of (b)	:
7.	(a)	Details of application for stay made to the revenue authorities 1. A.O. 2. C.I.T.
	(b)	Result
8.	*Reasons for seeking stay		:	Annexure ‘A’
	(a)	Whether the applicant is prepared to offer security	:
	(b)	If yes, in what form
9.	Prayer stating exact amount sought to be stayed		:
10.	If stay is sought in relation to a matter pending in reference before the High Court, give full particulars of R. A. No., date, etc.		:

Date :

Signature of Applicant

* Separate sheet may be used if space is not sufficient (See Annexure A)

Notes:

The application shall be made in triplicate and shall be neatly typed on one side of the paper with copies of the entire relevant document including demand notice, copies of correspondence with the Revenue Authorities for stay of demand and copies of the letter refusing stay of demand.
The content of the application shall be supported by affidavit duly sworn in by the applicant or his authorized agent.
The application shall be presented by the applicant in person or by his authorized agent or sent by registered post to the Bench of the Tribunal where appeal was filed or which has got jurisdiction to hear the appeal.

Prescribed Format of Appeal to the CCIT/CIT

Form No. I.T.C.P. 29A
[See rule 86(1) ¹[***] of the Second Schedule to the Income-tax Act, 1961]
Appeal to the 2[Chief Commissioner or Commissioner]

.............................

[Designation of the

²[Chief Commissioner or Commissioner]]

No. ................. of ............... 19.....—19........

[To be filled in in the office of the 2[Chief Commissioner or Commissioner]]

1.	Name and address of the appellant	................
2.	G.I.R. No.	................
3.	Certificate No.	................
4.	Assessment year in connection with which the appeal is preferred [See Foot Note 4]	................
5.	Tax Recovery Officer passing the order appealed against	................
6.	Rule and sub-rule of the Second Schedule to the Income-tax Act, 1961, under which the Tax Recovery Officer passed the order appealed against	................
7.	Date of the order appealed against	................
8.	† Relief claimed in appeal	................
9.	Address to which notices may be sent to the appellant	...............

Signed
(Appellant)

† Statement of Facts

† Grounds of Appeal

Signed
(Appellant)

Form of verification

I, ................................................, the appellant, do hereby declare that what is stated above is true to the best of my information and belief.

Place ................
Date ................

Signature ................
Status of appellant ................

Notes :

The form of appeal, grounds of appeal and the form of verification appended thereto shall be signed by a person in accordance with the provisions of rule 55A(2) of the I.T.C.P. Rules.
The form of appeal, statement of facts and the grounds of appeal must be in duplicate.
† If the space provided herein for the statement of facts and grounds of appeal is insufficient, separate enclosures may be used for the purpose.
Item 4 not to be filled in if the appeal relates to certificate proceedings for the realisation of tax required to be deducted/paid under section 195(1).

"(c)" omitted by the IT (Certificate Proceedings) (Second Amendment) Rules, 1990.
Substituted for "Tax Recovery Commissioner", ibid.

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