M/S SHYAM OIL EXTRACTIONS PVT. LTD. V. PRINCIPAL COMMISSIONER, INCOME - TAX, CENTRAL

WPT/9/2024

AI Insights

M/s Shyam Oil Extractions Pvt. Ltd. challenged the orders of the ACIT and PCIT, which required them to pay 20% of a high-pitched tax assessment as a pre-deposit for contesting the demand. The petitioner argued that the assessment was excessively high compared to their original tax return, constituting a 'high-pitched assessment' under various CBDT circulars. The ACIT and PCIT had granted the petitioner an installment payment facility instead of a complete waiver, which the petitioner contested. The court examined the legal provisions, relevant circulars, and precedents, ultimately deciding that the authorities acted within their discretion and the petitioner had not substantiated their claim for a complete waiver of the pre-deposit requirement.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 739926 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 14-02-2024
• Assessment Year: misc
• Other Referred Cases: Sanjay Kumar Kochhar vs Asst. Commissioner, Income Tax and Another, Taneja Developers and Infrastructure Ltd. v. Assistant Commissioner of Income Tax, Delhi & Ors, Maheshwari Agro Industries vs. Union of India and others, LG Electronics India Pvt. Ltd. vs. The PCIT and Others, Harish Chandra Bhati vs. PCIT, Flipkart Internet Pvt. Ltd. vs. The ACIT and Others, Reliance Airport Developers vs Airport Authority of India, Assistant Commissioner (CT) LTU, Kakinada vs Glaxo Smith Kline Consumer Health Care Limited
• Laws Referred To: Income Tax Act, 1961, Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: NAUSHINA ALI
• Assessee Lawyers: NEELABH DUBEY
• Keywords: Financial Difficulties; High-pitched assessment; Income tax assessment; Stay of demand; Waiver of pre-deposit
• Section: 147; 148; 119; 133(6); 127(1); 156; 220(6); 133-A

Judgement Text

"Page 1 of 18 AFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (T) No. 9 of 2024 Order Reserved On : 30.01.2024 Order Pronounced On : 14.02.2024 M/s Shyam Oil Extractions Pvt. Ltd. A Company Duly Registered Undet The Companies Act, 1956 Having Its Office At Village Banari, P.O. Naila, Janjgir - 495668, Chhattisgarh Through One Of Its Directors And Authorized Signatory Liladhar Sultanaia S/o Late Shri Hariram Sultania, Aged About 69 Years Resident Of P.O. - Banari District Janjgir-Champa (C.G.) ---- Petitioner Versus 1. Principal Commissioner, Income - Tax, Central Aayakar Bhawan, Hoshangabad Road, Bhopal (M.P.) 2. Chief Commissioner Of Income Tax Central Revenue Building, Civil Lines, Raipur, District Raipur (C.G.) 3. Assistant Commissioner Of Income-Tax Central Circle-Bilaspur (C.G.) -Respondents ________________________________________________________ For Petitioner : Mr. Neelabh Dubey, Advocate For Respondents : Ms. Naushina Afrin Ali, Advocate ________________________________________________________ Hon'ble Shri Narendra Kumar Vyas, J. CAV ORDER 1. The present petition has been filed by the petitioner under Article 226 of the Constitution of India challenging the order passed by the learned Assistant Commissioner Income Tax, Bilaspur on 03.07.2023 in ITBA/COM/F/17/2023-24/1054092576(1) for the assessment year 2018-2019 (Annexure P/4) by which the learned Assistant Commissioner has rejected the application filed by the petitioner for waiver of pre-deposit of 20% of assessed tax liability under Section 220(6) of the Income Tax Act, however, granted installment facility to the petitioner to Page 2 of 18 deposit Rs. 30,73,524/- per month which is payable before 15th of every month starting July, 2023 till March, 2024. The petitioner has also challenged the oder passed by the learned Principal Commissioner of the Income Tax (central), Bhopal dated 11.12.2023 in ITBA/RCV/F/17/2023-24/1058657759(1) whereby the application for stay of demand filed by the petitioner has been rejected and also granted reduced installment facility amounting to Rs. 13,85,000/- payable in 20 months till such installment reaches 20% of the total tax liability amounting to Rs. 13,84,43,552/- or till disposal of the appeal by CIT(Appeals) whichever is earlier. The PCIT has further directed the petitioner to deposit first installment of Rs. 13,85,000/- on 20.12.2023 and remaining installments by 20th of every month from month of January, 2024 and has further directed that if the petitioner fails to avail the facility of installment granted to it, the same shall be treated as null and void. 2. The brief facts as projected by the petitioner are that the Petitioner is a company engaged in the business of oil extraction from ricebran. For the assessment year 2018-19, it filed its return of income showing its total income at Rs. 26,93,557/-. A notice u/s 148 of the Act was issued to the Petitioner Company on 31.03.2022 and in response to the notice, the Petitioner Company filed its response followed by revised returns and multiple responses to queries raised from time to time. On 28.03.2023, the Assessing Officer passed the assessment order under Section 147 of the Income Tax Act, 1961 (Annexure P/1). Page 3 of 18 Along with the above mentioned order, a demand notice dated 28.03.2023 under Section 156 seeking payment of Rs. 13,84,43,552/- was also issued against the Petitioner. The demand of tax made in pursuant to the order under Section 147 of Rs. 13,84,43,552/- which is 51 times higher than the original tax deposited at the time of filing the original return on 24.10.2018 which was Rs.26,93,557/-, as such, it is high pitched assessment. Against this assessment, the Petitioner filed an application for grant of stay against the recovery of outstanding demand under Section 220(6) of before ACIT, Central Circle, Bilaspur. In its application, the Petitioner contended that the assessment is an extremely high pitched assessment where even the payment of 20% of the total tax demand would not be possible as even 20% of the total tax demand comes to Rs. 2,76,88,710/- which is 10.27 times of the returned income. The Petitioner has also mentioned its financial difficulties in the said application. It has been further contended that if the Petitioner Company is forced to pay 20% of the huge tax demand, it would financially ruin the business. 3. It has also been contended that the said application was rejected on 03.07.2023 by the ACIT and directed the Petitioner to make partial payment of 20% of the tax demand with an arrangement where Petitioner Company was required to pay a monthly installment of Rs.30,73,524/- to be paid before 15th of every month starting from July, 2023 till March, 2024. Against the order of the ACIT, the Petitioner preferred an application dated Page 4 of 18 14.07.2023 before PCIT, Income Tax (Central), Bhopal. This application was rejected without assigning any reason for rejection. The cases of high pitched assessment are to be treated differently which are further affirmed by the instruction, F.No.225/101/2021/-ITA-II dated April 23, 2022 which is a revised instruction for constitution and functioning of local committees to deal with taxpayers' grievances from high pitched scrutiny assessment. This also affirms that the view of the highest revenue authorities areis also along the lines of what has already been decided in large number of cases, namely that the requirement of deposit of 20% does not apply in cases of high pitched assessments. Thus the petitioner had a very good case for grant of stay of recovery of demands and the orders of ACIT and PCIT are illegal and grossly arbitrary. Hence the petitioner has prayed for following reliefs:- (10-1) Calling for the records of the case. (10-2) Quashing/setting aside setting aside the order dated 11.12.2023 made by the Principal Commissioner of Income Tax [Central], Bhopal being Annexure P/6. (10-3) Direct the respondent authorities that the tax demand, interest and penalty arising out of the assessment order dated 28.03.2023 being Annexure P/1 shall not be recovered till disposal of the appeal pending before the Commissioner (Appeals). (10-4) Stay the effect and operation of the order dated 11.12.2023 being Annexure P/6 and assessment order dated 28.03.2023 being Annexure P/1 till the disposal of this petition. (10-5) Direct the respondent authorities that they expeditiously decide the appeal and the stay application of the petitioner. (10-6) Hold that the instant case involves high pitched Page 5 of 18 assessment and thus the amount shall not be recovered till the pendency of the appeal from the petitioner/assessee. 4. Learned counsel for the petitioner would submit that before the ACIT as well as the PCIT the Petitioner took the plea of high pitched assessment which has not been considered as per the law on the subject. He would further submit if he is compelled to deposit huge amount of tax it will ruin his business and the authorities have passed the order without considering the difficulty faced by the petitioner, as such, he would pray for quashing of the impugned orders and would pray for exemption from paying 20% of the assessed amount of tax. 5. To substantiate his submission he has relied upon the order dated 03.05.2017 passed by this Court in W.P. (T) No.66/2017 {Sanjay Kumar Kochhar vs Asst. Commissioner, Income Tax and Another}. He would further submit that it is an accepted principle across the tax jurisprudence that circular issued by the Central Board of Direct Taxes is binding on the revenue authorities as such it is incumbent upon them to follow the circulars and should have granted exemption from payment of 20% of the tax being high pitched assessment. 6. Learned counsel for the petitioner has referred to the judgment in case of Taneja Developers and Infrastructure Ltd. v. Assistant Commissioner of Income Tax, Delhi & Ors, (2010) 324 ITR 247, wherein Hon'ble High Court of Delhi relying on the above circular, dealt with the concept of high pitched assessment in detail. The relevant paragraphs of the said decision read as under: Page 6 of 18 \"A perusal of paragraph 2 of the aforesaid extract would show that where the income determined is substantially higher than the returned income, that is, twice the latter amount or more, then the collection of tax in dispute should be held in abeyance till the decision on the appeal is taken. In this case, as we have noted above, the assessment is almost 8 times the returned income. Clearly, the above extract from Instruction No. 96 dated August 21, 1969 would be applicable to the facts of the case.\" 7. Learned counsel for the petitioner would submit that from time to time, the CBDT, invoking power given under Section 119 of the Income Tax Act has issued various circulars/instructions to the department. The Circular No. 96 as well as Circular dated 23.04.2022 deal with the high-pitched assessment. The circular dated 23.04.2022 provides revised instruction for constitution and functioning of local committees to deal with taxpayers' grievances from high-pitched scrutiny assessment. This instruction further provides for initiation of suitable administrative action against the erring officer in case of high-pitched or non- observance of principles of natural justice, non-application of mind or gross negligence of assessing officer/Assessment Unit and would submit that stay be granted as it is a case of high pitched assessment to the tune of 20% of tax amount which is 10.27 times higher than the original return. To substantiate his contention he would refer to judgment of the Hon'ble High Court of Rajasthan in Maheshwari Agro Industries vs. Union of India and others {(2012) 346 ITR 375}, judgment of Hon'ble High Court of Delhi in Soul vs Deputy Commissioner of Income Tax {(2010) 323 ITR 0305}, judgment of High Court of Karnataka in case of Flipkart Internet Pvt. Ltd. vs. Page 7 of 18 The ACIT and Others {(2017) 396 ITR 551}, judgment of Hon'ble High Court of Delhi in case of LG Electronics India Pvt. Ltd. vs. The PCIT and Others {(2022) 443 ITR 46}, judgment of Hon'ble High Court of Allahabad in case of Harish Chandra Bhati vs. PCIT {(2022) 447 ITR 585}. 8. Learned counsel for the Revenue opposes the submission and would submit that the assessing authority has passed the order of assessment after considering the materials placed before it and also considering that the petitioner was unable to explain the expenses and has purchased maximum raw materials from related parties. She would further submit that the assessing authority has also considered that there was survey under Section 133 of the Income Tax Act. It has also been contended that the assessing authority has also considered the transaction with proprietor and proprietorship concerned. The assessing authority has also issued notice under Section 133(6) of the Income Tax Act to the related parties and also considered their replies, thereafter the assessment order was passed, as such, the petitioner cannot claim waiver from depositing 20% of the assessed amount and it cannot be said that it is high pitched assessment. It is based upon the factual matrix placed before the assessing authority. She would further submit that in WPT No. 118/2019 vide order dated 05.09.2019 the prayer for stay of recovery of tax assessed under the relevant provisions of Income Tax Act being high pitched assessment has been rejected. The assessee has preferred Writ Appeal No. Page 8 of 18 584/2019 wherein the Hon’ble Division Bench has affirmed the order vide judgment dated 19.12.2019. She would further submit that ACIT has also granted installment facility to the petitioner and the said order has been affirmed by the PCIT vide order dated 11.12.2023 by further reducing the installment to the tune Rs. 13,85,000/- per month which is just and proper and does not warrant intereference by this Court. She would further submit that the petitioner has not availed the installment facilities granted to it as no document has been placed on record to demonstrate that it has made some compliance of the order dated 03.07.2023 or subsequent order dated 11.12.2023, thus, she would pray for dismissal of the writ petition. She would further submit that circular dated 23.04.2022 provides filing of grievance petition with regard to high pitched scrutiny assessment but the petitioner has neither preferred the petition before the Committee as provided in the circular nor before the appellate authority where the appellate authority can consider the grievances of the petitioner as per the provisions of Income Tax Act. The petitioner has preferred stay petition which has been considered by the PCIT Central Bhopal wherein the opportunity of hearing was given to the petitioner and petitioner has also submitted written submission. Considering the submission of the petitioner, the impugned order was passed on 11.12.2023 reducing the installment which is neither perverse nor contrary to the law. As such, she would pray for dismissal of the petition. Page 9 of 18 9. I have heard learned counsel for the parties and perused the record. 10. From the above factual and legal submission raised by the parties the point to be determined by this Court is whether the petitioner is entitled to waive off the pre-deposit of 20% of the assessed tax liability being high pitched assessment in view of the factual matrix that the learned assessing authority and PCIT have already granted monthly installment facility to the petitioner. 11. From the records particularly the assessment order for the financial year 2018-2019 dated 28.03.2023 it is quite vivid that a survey was conducted under Section 133(A) of the Income Tax Act on 14/17.02.2018 in case of Shyam Warehousing and Power Limited and other 14 related cases, including this case. The Principal Commissioner Income Tax Bilaspur on 27.04.2018 under Section 127(1) of the Income Tax directed for centralising all cases. The survey would reveal that major partition of raw materials was claimed to have purchased by Shri Shyam Warehousing and Power Ltd. from a number of related parties. From the same business premises and payment in this regard was made to them through cheque. The related parties have claimed to have purchased the raw materials in cash. However, not a single evidence of cash purchase could be produced during survey. No bifurcation of stock of raw materials in number of related parties have been found during survey. The assessing authority has also recorded its finding that the assessee has adopted similar modus operandi in the claim of purchase from Page 10 of 18 related parties. The petitioner was given notice and reply was submitted which has been considered by the assessing authority, thereafter order was passed. The assessing authority has also recorded its finding that onus of proof lies upon the assessee but he has not discharged the same. The assessing authority has also recorded its finding that assessee has refused to acknowledge stock discrepancies during survey as he has refused to sign the measurement and stock valuation made by third party. The assessing authority has also recorded its finding that the related parties do not have trading activity of husk and bran. Thus, there was sufficient material before the authority to pass the assessment order. 12. The learned counsel for the petitioner would submit that since it is a high pitched assessed tax as 51 times of the original tax deposited at the time of filing of return on 24.10.2018. As such, in light of Instruction No. 1914 dated 21.03.1996 which provides guidelines for stay of demand at the first appeal stage, subsequent modified circular dated 29.02.2016 which streamlines the process of granting stay and subsequent circular dated 23.04.2022 which deals with the grievances of tax payer from high pitched scrutiny assessment. He would submit that the impugned orders are bad in law as the authorities have not considered the circulars issued by the CBDT which are binding in nature. The learned counsel for the petitioner would draw attention of this Court towards the judgment of Harish Chandra Bhati (supra), Flipkart Internet Pvt. Ltd (supra) and other Page 11 of 18 judgments and would submit that in case of high pitched assessment instructions of CBDT are to be followed. The Delhi High Court in case of Taneja (supra) has held that the figure of 8 times and 74 times has been classified as unreasonably high pitched assessment. The High Court of Karnataka again in case of Flipkart has remanded the matter back to the PCIT to decide the review petition within two weeks from the date of receipt of certified copy. The High Court of Delhi in case of Harish Chandra Bhati has disposed off the petition giving liberty to the petitioner to avail of the statutory remedy of appeal or revision under the Act of 1961. 13. From the above factual matrix, it is quite vivid that the judgments cited by the learned counsel for the petitioner are not applicable to the present facts and circumstances of the case as ACIT and PCIT have already granted installment facilitates to the petitioner whereas in the judgments cited by the learned counsel for the petitioner either there was no order or passed order without assigning any reason whereas in the present case the revenue has granted adequate relief to the petitioner after giving him opportunity of personal hearing and also given opportunity to submit written submission also, as such, the orders do not suffer from arbitrariness, illegality or perversity. 14. The learned counsel for the revenue has referred to the judgment of this Court in Writ Appeal No. 584/2019 {Shri Amolak Singh Bhatia vs Principal Commissioner of Income Tax (Central)}wherein the Hon’ble Division Bench has held as Page 12 of 18 under:- “13. It is true that power is conferred upon the above Respondents to grant stay of the demand / recovery by virtue of the Circulars as mentioned above; which have been issued as standardization of the procedure, of- course as a matter of policy. But this power is specifically conferred upon the Assessing Officer, who passed the assessment order or the Higher Departmental Authorities as mentioned in the Circulars. This obviously is different from the power of the 'Appellate Authority' to grant stay in appropriate cases with or without any conditions. There is no case for the Appellant that he has filed any application for stay before the Appellate Authority i.e. the 2nd Respondent or that it has been rejected. The Statutory Authority for considering and deciding the appeal (the 2nd Respondent) or the power of the Appellate Tribunal to consider the correctness of such orders passed by the Appellate Authority in terms of the provisions under the IT Act cannot be said as governed by the Circulars and it is always open for the Appellate Authority to grant even absolute stay in appropriate cases, if such circumstances are established by the Appellant. It is not a case where any 'pre-deposit' is insisted so as to entertain the appeal or the application for interim stay (filed before the Appellate Authority/2nd Respondent). No such obligatory provision is brought to the notice of this Court governing the right of appeal. As such, it may not be correct to say that the right of appeal or the right to file application for stay during pendency of the appeal is defeated because of the orders passed by the 1st and 3rd Respondents. This is more so, since the Circulars sought to be relied on the by the Appellant virtually refer to the power of the Assessing Authority or such other higher authorities of the Department and not the power of the Appellate Authority/Quasi- Judicial Authority deciding the merit of the appeal/I.A. for stay. In other words, it is a self-imposed departmental restraint on the demand/ recovery, to be raised/pursued, which cannot affect the statutory power conferred upon the Appellate Authority. This discussion is made only in view of the lengthy submissions made by the learned counsel for the Appellant with regard to the 'scheme of the taxation jurisprudence' and never to say, if the Appellant is actually entitled to get a stay as sought for or not.” 15. In the present case also the petitioner has preferred an application on 03.05.2023 before the ACIT, Bilaspur for grant of stay against outstanding demand by filing an application under Page 13 of 18 Section 220 (6) of the Income Tax Act contending that the demand raised in assessment is high pitched and it is not possible for the assessee to pay even 20% of the disputed demand because the assessee does not possess enough resources to pay 20% of the demand relying upon the circulars which was considered favorably by providing installment facility. Thereafter he has preferred an application before the PCIT Central (Bhopal) reiterating the same which has been further considered and the installment was reasonably reduced vide order dated 11.12.2023. The record of the case would clearly demonstrate that the petitioner has not prayed for waiver of 20% of assessed tax liability by before the appellate authority. The Hon’ble Division Bench considered a similar situation in case of Amolak Singh Bhatia (supra) has held that the circular issued by the department cannot overwrite the power of the appellate authority, quasi judicial authority deciding the merit of the appeal/ interim application for stay as the circulars are self imposed departmental restraint on the demand / recovery to be raised/ persuaded, which cannot affect the statutory power conferred upon the appellate authority. 16. Now coming to the facts of the case, it is quite vivid that the ACIT while considering the request made by the petitioner for waiver of pre-deposit of 20% of assessed tax liability under Section 220(6) of the Income Tax Act has granted installment facility to the petitioner to deposit Rs. 30,73,524/- per month which is payable before 15th of every month starting July, 2023 till March, Page 14 of 18 2024 and PCIT vide order dated 11.12.2023 has reduced installment amounting to Rs. 13,85,000/- for 20 months till such installment reaches 20% of the total tax liability amounting to Rs. 13,84,43,552/- or till the disposal of the appeal by CIT(Appeals) whichever is earlier. The PCIT has further directed petitioner to deposit first installment of Rs. 13,85,000/- on 20.12.2023 and remaining installments by 20th of every month from month of January, 2024. 17. From the record it is quite vivid that the revenue authorities have considered the grievances of the petitioner by granting monthly installment Rs. 13,85,000/- from December, 2023 and the record of the case would clearly demonstrate that petitioner neither submitted his genuine hardship at the time of filing of the application under Section 220(6) of the Income Tax Act before ACIT or before PCIT. Even before this Court very vague statements have been made. The petitioner has not substantiated genuine hardship by placing materials, evidence regarding its financial crisis, if any, suffered by the petitioner or losses which has ruined the business completely. The genuine hardship has been considered by the Hon’ble Supreme Court in case of B.M. Malani vs Commissioner of Income Tax {(2008) 10 SCC 617} wherein the Hon’ble Supreme Court has held as under :- “16. The term `genuine' as per the New Collins Concise English Dictionary is defined as under: `Genuine' means not fake or counterfeit, real, not pretending (not bogus or merely a ruse)\" Page 15 of 18 18. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well--known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind. The said principle, it is conceded, has not been applied by the courts below in this case, but we may take note of a few precedents operating in the field to highlight the aforementioned proposition of law. 19. Thus, the said principle, in our opinion, should be applied even in a case of this nature. A statutory authority despite receipt of such a request could have kept mum. It should have taken some action. It should have responded to the prayer of the appellant. However, another principle should also be borne in mind, namely, that a statutory authority must act within the four corners of the statute. Indisputably, the Commissioner has the discretion not to accede to the request of the assessee, but that discretion must be judiciously exercised. He has to arrive at a satisfaction that the three conditions laid down therein have been fulfilled before passing an order waiving interest. 18. The revenue authorities have considered the application submitted by the petitioner and granted relief to the petitioner by directing monthly installment of Rs. 13,85,000/- which cannot be said to be arbitrary or suffers from non application of mind. Even the record would show that the assessment order for the assessment year 2018-19 was passed on 28.03.2023 and more than 10 months have been lapsed, the petitioner is not taking recourse by filing an application for stay before the CIT(A) who is empowered under Section 246 of the Income Tax Act to waive the pre-deposit of 20%. 19. The issue of waiver of pre-deposit of 20% of assessed tax legality has come up for consideration before the Hon’ble Supreme Court in case of Principal Commissioner of Income Tax 5 and Others vs L.G. Electronics {(2018) 18 SCC 447} Page 16 of 18 wherein the Hon’ble Supreme Court has held as under:- “2. Having heard Shrit Vikramjit Banerjee, learned ASG appearing on behalf of the appellant, and giving credence to the fact that he has argued before us that the administrative circular will not operate as a fetter on the Commissioner since it is a quasi-judicial authority, we only need to clarify that in all cases like the present, it will be open to the authorities, on the facts of individual cases, to grant deposit orders of a lesser amount than 20%, pending appeal.” 20. The authorities have exercised their discretionary power considering the factual matrix, after giving opportunity of hearing which cannot be said to be arbitrary or suffers non application of mind which warrants interference by this Court. Even otherwise, it is well settled position of law that while considering prayer for interim relief the paramount consideration is public interest as held by the Hon’ble Supreme Court in case of Commissioner of Central Excise vs. Dunlop India Limited {(1985) 1 SCC 260} wherein the Hon’ble Supreme Court has held as under:- “7………….We do not have the slightest doubt that the orders of the learned single judge as well as Division Bench are wholly unsustainable and should never been made. Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification for granting the interim orders as was done by High Court. There was no question of any balance of convenience being in favour of the respondent-Company. The balance of convenience was certainly in favour of the Government of India. Governments are not run on mere Bank Guarantees. We notice that very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice. No governmental business or for that matter no business of any kind can be run on mere Bank Guarantees. Liquid cash is necessary for the running of a Government as indeed any other enterprise. We consider that where matters of public revenue are concerned, it is of utmost importance to realise that interim orders ought not to be granted merely because a prima facie case has been Page 17 of 18 shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest……..” 21. Again the Hon’ble Supreme Court in case of Reliance Airport Developers vs Airport Authority of India {(2006) 10 SCC 1} has considered the discretion and governing principle for exercise of discretion as held as under:- “30. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection: deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private -affections of persons. ’31. The word discretion standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care: therefore, where the Legislature concedes discretion it also imposes a heavy responsibility. 30. The Hon’ble Supreme Court in case of Assistant Commissioner (CT) LTU, Kakinada vs Glaxo Smith Kline Consumer Health Care Limited {(2020) 19 SCC 681} has held as under:- “16. Indubitably, the powers of the High Court under Article 226 of the Constitution are wide, but certainly not wider than the plenary powers bestowed on this Court under Article 142 of the Constitution. Article 142 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties. Even while exercising that power, this Court is required to bear in mind the legislative intent and not to render the statutory provision otiose.” Page 18 of 18 31. Considering the above stated factual and legal position and also considering that the ACIT and PCIT have exercised their discretionary power by granting installment facilities 9 and 20 installments respectively, I do not find that any irregularity or illegality has been committed by the revenue authorities. Accordingly, the writ petition deserves to be and is hereby dismissed. 32. No order as to costs. Sd/- (Narendra Kumar Vyas) Judge kkd "