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2019 (1) TMI 858 - HC - Income TaxApplication of stay - applicability of ALP - Held that:- As decided in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. And Others [1984 (11) TMI 63 - SUPREME COURT] it is apparent that the same arises out of a matter pertaining to indirect taxation. The parameters that are required to be considered by the courts and Tribunals while granting stay and thereby staying the recovery of the revenue is set out. In the instant case it is not in dispute that the matter is otherwise and is one concerning a direct tax. Be that as it may, the criteria as set out by the Hon’ble Apex Court, could also be made applicable in matters arising out of direct taxes. Hence, the Appellate Tribunal was not only required to exercise its discretion but the exercise of the discretion ought to be judicious after taking into account the relevant factors and the exercise of discretionary power on irrelevant consideration, would render the order injudicious and unsustainable as stated supra. The Appellate Tribunal has proceeded to pass the impugned order contrary to the material on record. In that view of the matter, the order is rendered a non-speaking order and stands vitiated by non application of mind. In view of the above conclusion, the writ petition is partly allowed. The order dated 02.11.2018 is set aside. The writ petition is allowed subject to the petitioner depositing a sum equal to the 40% of the demand within a period of four weeks from today.
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