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TMI Blog2017 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... demands for Assessment Year (AY) 2014-15, to the tune of Rs. 4,18,13,06,110/- subject to its depositing Rs. 62,71,95,920/-. The petitioner had relied on instructions of the Central Board of Direct Taxes embodied in its Office Memorandum (OM) dated 29.02.2016, to say that it was entitled to the facility of stay of demand in excess of 15% in the exceptions spelt out in Para 4B(b), which reads as under:- "(b) the assessing officer is of the view that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount lower than 15% is warranted (e.g. in a case when addition on the same issue has ken confirmed by appellate authorities in earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of the assessees, etc.) - the assessing officer shall refer the matter to the administrative Pr.CIT/CIT, who after considering all relevant facts shall decide the quantum/proportion of demand to be paid by the assessee as lump sum payment for granting a stay of the balance demand." 3. In its writ petition, the petitioner had previously contended that the AO had not considered the top line credit adjustment which the petitioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The writ petition along with pending application stands disposed off in the above terms." 5. After the remand by this court, the AO made a fresh order ("the impugned order") on 14th March 2017. In this, the AO considered the issue of stay virtually afresh and stated as follows: "It is important to note that the above stated paragraph of O.M. dated 26.02.2014 is not applicable in the instance case of assessee. The assessee failed to provide any instance where addition on this issue has been deleted by appellate authorities in their own case or the decision of Supreme Court or jurisdictional Hon'ble High Court is in favour of the assessee. But the assessee has quoted that in the case of M/s. Shyam Telelinks Ltd. 2013 (31 Taxman.Com. 239) the issue has been favorably covered by the Hon'ble Delhi ITAT. The issue related to unearned revenue remains contentious. Therefore, the resulted demand on this issue shall remain unenforceable till the disposal of appeal at the first appellate authority. ************* &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. is highly uncertain. Hence, the risk of recovery has increased. Therefore, to safe guard the interest of revenue and in view of para 4(b)(a) of office memorandum issued by CBDT dated 29.02.2016. The assessee is directed to make entire payment of adjusted demand of Rs. 2,30,24,19,520/- *********** ***************** 8. Total enforceable tax liability comes to Rs. 2,30,24,19,520/- in this refund claimed by the assessee though not entitled comes to Rs. 27.22Cr. even if this amount of refund is considered the total adjusted tax liability comes to Rs. 203 Cr, which is enforceable. Hence, the assessee is directed to pay this amount in three equal installments on or before the following dates...." 6. The petitioner is aggrieved by the above order, and states that this amounts to a review of the previous order, which had clearly expressed the revenue's opinion that relief of upto 85% stay of deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use, or grant conditional interim relief. 8. There is, in the opinion of this court, considerable merit in the petitioners' grievance that after the remit by this court, in its order of 1st March, 2017, the AO had to confine the focus of his inquiry only and only to whether to grant relief in excess of 85% exemption from compliance with the demand to pay tax. Now, the court cannot go into the merits of the matter, since the appeal is pending before the Appellate Commissioner. However, what is apparent is that when the AO made his first order, he was decidedly of the opinion that the petitioner/assessee was entitled to the facility of paying 15% of the amounted demanded, to secure a stay of demand during pendency of its appeal. He granted that relief. The petitioner wanted more, and contended that the AO had overlooked three points and could well have invoked the power to grant relief in excess of 85%, i.e. could have even completely absolved it of the liability to pay anything towards the tax demand, since its case fell within the provision in the concerned circular. 9. The Central Board of Direct Taxes (CBDT) had previously issued instruction No. 1914 dated 02.12.1993. This was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of Revenue or addition is based on credible evidence collected in a search or survey operation, etc.) or, (b) the assessing officer is of the view that the nature of addition resulting in the disputed demand is such that payment of a lump sum amount lower than 15% is warranted (e.g. in a case where addition on the same issue has been deleted by appellate authorities in earlier years or the decision of the Supreme Court or jurisdictional High Court is in favour of the assessee, etc.), the assessing officer shall refer the matter to the administrative Pr. CIT/CIT, who after considering all relevant facts shall decide the quantum/proportion of demand to be paid by the assessee as lump sum payment for granting a stay of the balance demand. (C) In a case where stay of demand is granted by the assessing officer on payment of 15% of the disputed demand and the assessee is still aggrieved, he may approach the jurisdictional administrative Pr. CIT/CIT for a review of the decision of the assessing officer. (D) The assessing officer shall dispose of a stay petition within 2 weeks of filing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit to the assessee, as can be seen from the following extract (of the AO's previous order dated 22.02.2017): "Considering the facts and circumstances of the case and CBDT's instruction dated 22-2-2016 which modified the existing instruction no. 1914 dated 21-03-1996 to provide that where an appeal against the assessment order is pending with the first appellate authority the AO shall grant the stay of demand till the disposal of appeal, if the assessee has deposited 15% of outstanding demand. In your case the demand for the A.Y. 2014- 15 of Rs. 4,18,13,06,110/- will be stayed till the disposal of appeal by CTT(A) subject to payment of 15% of the demand i.e. Rs. 62,71,95,920/-. This is subject to the following conditions..." 11. The order of this court did not set aside the above order of the AO and direct him to look into the matter afresh. What it did require him to do was to exercise discretion and consider whether further relief could be granted. The scope of remand by a higher court or authority limits and correspondingly circumscribes the jurisdiction of the lower authority exercising its powers. This was explained in the Supreme Court judgment reported as Nain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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