TMI Blog2016 (12) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... h the issue of grant of stay of the impugned demand. Considering the overall circumstances and para 4(A) of the O.M., we find that the impugned order can be stayed, subject to an amount of ₹ 2,53,61,907/- (15% of the total demand of ₹ 16,90,79,380/-) being adjusted out of the refund, which is due for the Assessment Years 2006-07 and 2007- 08. Thus, the petition is partly allowed. The impugned communication/order, rejecting the application for stay, is set aside. There shall be interim stay of the impugned demand, pending disposal of the appeal before the CIT (A), on condition of an amount of ₹ 2,53,61,907/-, from out of the refund for the Assessment Years 2006-07 and 2007-08, being retained towards 15% of the amount a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to respondent no. 3, for stay. On 04.07.2016, respondent no. 3 directed the respondent no. 2 to reconsider the petitioner's request for stay in the light of the office instructions dated 29.02.2016 issued by Central Board of Direct Taxes (CBDT). On 13.07.2016, the petitioner applied to respondent no. 1, seeking an unconditional stay on the demand as made. Respondent no. 1 directed respondent no. 2, to adjust the refund, which is due to the petitioner, for the Assessment Years 2006-07 and 2007-08 against the aforesaid demand. The petitioner sought for personal hearing, which was not acceded to. On 04.10.2016, the respondent no. 1 has rejected the application for stay, which brings the petitioner to this Court. 5. We have heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited Vs. The Principal Commissioner of Income Tax (Civil Writ Petition No. 13146/2016 decided on 21.09.2016). 7. On the contrary, it is submitted by Ms. Asha Desai, the learned Counsel for the respondents that the impugned orders passed by the competent authorities, refusing to grant stay, are passed by the respondents, what she calls to be on the administrative side. It is submitted that the petitioner has filed an appeal, which is pending before the CIT (A) and the petitioner can seek appropriate order of stay in the appeal and in view of this, the petition may not be entertained. The learned Counsel in this regard has pointed out the decision of this Court in the case of Ulhas Jewellers Pvt. Ltd. Vs. PR. Commissioner of Income Tax, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee that he will cooperate in the early disposal of appeal failing which the stay order will be cancelled; (ii) reserve the right to review the order passed after expiry of reasonable period (say 6 months) or if the assessee has not cooperated in the early disposal of appeal, or where a subsequent pronouncement by a higher appellate authority or court alters the above situations; (iii) reserve the right to adjust refunds arising, if any, against the demand, to the extent of the amount required for granting stay and subject to the provisions of Section 245. 9. It can thus be seen that under para 4(A) of the O.M., a case where outstanding demand is disputed before the CIT(A) (as in the present case), the assessing officer sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue of grant of stay of the impugned demand. Considering the overall circumstances and para 4(A) of the O.M., we find that the impugned order can be stayed, subject to an amount of ₹ 2,53,61,907/- (15% of the total demand of ₹ 16,90,79,380/-) being adjusted out of the refund, which is due for the Assessment Years 2006-07 and 2007- 08. 12. Thus, the petition is partly allowed. The impugned communication/order, rejecting the application for stay, is set aside. There shall be interim stay of the impugned demand, pending disposal of the appeal before the CIT (A), on condition of an amount of ₹ 2,53,61,907/-, from out of the refund for the Assessment Years 2006-07 and 2007-08, being retained towards 15% of the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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