TMI Blog2012 (4) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid order of CIT(A) is set aside and appellate authority is directed to decide the appeal finally on merits. Demand is kept in abeyance during pendency of appeal. However, the petitioner shall furnish security to tune of 30% of the total demand within ten days. - WRIT TAX No. - 367 of 2012 - - - Dated:- 22-3-2012 - Ashok Bhushan, Prakash Krishna, JJ. Petitioner Counsel :- Ritesh Kumar Agrahari Respondent Counsel :- C.S.C./Income Tax Heard Sri Ritesh Kumar Agrahari, learned counsel for the petitioner, and Sri Bharat Ji Agarwal, learned Senior Advocate, assisted by Sri Ritesh Jain, for the department. By consent of learned counsel for the parties, the writ petition is being finally decided. This writ petition has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Andhra Pradesh. We have considered the submissions of learned counsel for the parties and perused the record. The grounds which were pressed by the petitioner in support of the stay application has been noticed by the Commissioner. The CBDT circular No. 1914 has also been relied which has been quoted by the petitioner in writ petition. After hearing the assessee's authorised representative and written submissions of the company, following was observed by the commissioner of appeals:- "The assessee had not taken the trailers/cranes on hire or rent from the said parties. The assessee has given sub-contracts to the said parties for the transportation of goods and not for renting out of machineries and equipments. Section 1941 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 154 ITR 172 (SC) and circular of CBDT No.1914 and directed for deposit of 30% of the total demand. The judgment of the Apex Court in M/s Pennar Industries's case (supra) laid down following in paragraph 7:- "7. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this order. In view of the above, ends of justice be served in setting aside the order dated 19th March, 2012 and directing the appellate authority to decide the appeal finally on merits. We provide that during pendency of the appeal the demand against the petitioner shall be kept in abeyance. It is ordered accordingly. However, the petitioner shall furnish adequate security to the satisfaction of the respondent No. 4 for the amount to be deposited under the order of the Commissioner Income Tax (Appeals) i.e. 30% of the total demand within ten days. We make it clear that in case the security as directed above is not furnished, the petitioner shall not be entitled for any benefit of this order. Accordingly, the writ petition is final ..... X X X X Extracts X X X X X X X X Extracts X X X X
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