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2021 (9) TMI 203 - GUJARAT HIGH COURTStay of demand - guideline for stay of demand on payment of 20% of the disputed demand (earlier 15%) till the final disposal of the first appeal - Adjustment of future refunds - provisions of Section 254(1) and(2A) of the Act - alternate remedy - whether the action on the part of the Revenue is in accordance with law? - HELD THAT:- It is not that the CIT has not granted stay in favour of the writ applicant, but the same is conditional. It is highly doubtful whether such an order can be challenged in an appeal before the ITAT. We are not inclined to reject this writ application only on the ground of alternative remedy. So far as the CBDT instructions are concerned, there is an underlying principle that pending the first appeal, the assessee may be afforded with some protection against coercive recovery on the condition of deposit of some money So far as Section 245 of the Act is concerned, there need not be any debate as regards the power of the Department to adjust the refund, however, such power should be exercised in a reasonable manner. Here is a case wherein the assessee is sought to be deprived of a huge amount towards the refund. A huge amount towards refund is being declined on the ground that a demand is pending for the previous year - One assessee who has to recover significant amount towards the refunds and another who has not to recover the refunds would be put in two different categories because in the first case refund would be adjusted whereas in the second case, no such adjustment is possible. We are also not impressed by the submission canvassed on behalf of the Revenue as regards estoppel. First, there cannot be any estoppel against the statute. We may only observe that the writ applicant has raised issues relating to financial hardships. The writ applicant has pointed out that it has suffered losses in earlier four years - As decided in M/S JINDAL STEEL AND POWER LTD. [2016 (9) TMI 1194 - PUNJAB AND HARYANA HIGH COURT] CIT rightly did not grant a complete stay but considered the petitioner's application in the alternative for a stay subject to its paying 15% of the outstanding demand in terms of the Office Memorandum. Writ application succeeds and is hereby allowed. The impugned order dated 12th July, 2019 passed by the respondent No.2, Annexure-A is hereby set aside to the extent it puts a condition of adjustment of future demands arising to the writ applicants. There shall be unconditional stay of demand against the application filed by the writ applicants dated 10th July, 2019 till the final disposal of the appeal pending before the Income Tax Appellate Tribunal. The intimations dated 22nd July, 2019, Annexure-A1 are also hereby quashed and set aside.
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