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TMI Blog2018 (5) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... different cities and States. The petitioner in W.P.Nos.6046 to 6052 of 2018, is the Managing Director of private limited company. 3. The assessment, in respect of the private limited company was completed under Section 143(3) read with Section 153(C) read with Section 153A of the Income Tax Act (hereinafter referred to as Act ) by order dated 29.12.2017, for the assessment years 2011-12 to 2016-17. On the same date, an order of provisional attachment of the immovable properties held in the name of the company was passed. On receipt of the order of assessment, the petitioner sent a communication dated 22.01.2018, requesting for rectification of mistakes, alleging to be apparent from the record, by filing petition under Section 154 of the Act. At the time when the Writ Petitions were filed, these rectification petitions were pending, however when they were heard, the learned Additional Solicitor General of India submitted that those petitions have been rejected by order dated 13.04.2018. 4. The company, while in process of filing appeal against the assessment orders, filed petition before the Assessing Officer, namely, Assistant Commissioner of Income Tax, Central Circle-2(1), pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 02.02.2018, praying for stay of the demand within a time frame. The second respondent by orders dated 06.03.2018, directed the petitioner to pay 30% of the disputed demand and if such payment is made, the balance shall remain stayed till the disposal of the appeal, with the further condition that the assessee has to cooperate in the appeal proceedings and stay would be reviewed after six months. This order dated 06.03.2018, is impugned in these Writ Petitions. 6. The Writ Petitions were presented on 14.03.2018 and one day before the date of presentation, on 13.03.2018 the petitioners filed stay petition before the third respondent, requesting for stay of the entire disputed amount for each of the assessment years. While those petitions were pending, the petitioner has moved these Writ Petitions for admission on 19.03.2018. 7. Before the Writ Petitions were heard for admission, on 16.03.2018 the third respondent has disposed of the stay petitions by order dated 13.03.2018, directing the petitioners to pay 20% of the total demand. Thus, the petitioner has approached all the three respondents, praying for stay and has also approached this Court earlier, challenging the order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, which were presented on 14.03.2018, on 13.03.2018, the petitioner filed stay petition before the third respondent and moved the Writ Petitions, when the prayer for stay, was pending before the third respondent. It is not clear as to whether separate orders have been passed by the third respondent on the stay petitions, as passed in the case of the company by order dated 16.03.2018. 9. Mr.P.H.Arvindh Pandian, learned Senior counsel appearing for the petitioner elaborately set out the factual matrix and referred to a tabulated statement given in the affidavit filed in support of the Writ Petitions to demonstrate that the assessments are extremely high pitched assessments as for certain years, the number of times, the assessment has been increased, is more than 130 times. It is submitted that the second respondent ought to have appreciated that instruction No.96, dated 21.08.1969, read with sub-clause 2(B)(iii) of the instruction No.1914, dated 02.12.1993, issued by the CBDT vested power to grant stay of collection of demand of tax, where the assessment order is high pitched or where genuine hardship is likely to be caused to the petitioner. It is further submitted that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention of the petitioner that they are entitled for a refund of more than seven crores is incorrect, since it is a claim made by them while filing the return for the assessment year 2017-18 and the return is yet to be processed and such a contention raised by the petitioner is not sustainable. Therefore, it is submitted that the Writ Petitions are liable to be dismissed. 12. Mr.O.R.Santhanakrishnan, learned counsel appearing for the fourth respondent Bank placed before this Court in the form of a typed set of papers, the notice received from the first respondent, calling upon them to pay the money to the department and it is submitted that the respondent bank has permitted only inward remittances and all outward payments have been freezed. 13. Heard the learned counsels appearing for the parties and carefully perused the materials placed on record. 14. The factual details set out above, will clearly show that the petitioners, company as well as the Managing Director, have exhausted all avenues available to them before the respondents. In fact, on certain occasions, there has been parallel remedies invoked. One such attempt made by the petitioner has ended against the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to bear in mind that when they make a prayer for grant of stay, three principles have to be satisfied. The assessees were bound to show that they have a prima facie case; secondly they have to show that the balance of convenience is in their favour and thirdly they will have to prove that if the stay is not granted, they would be put to irreparable hardship. 18. Unfortunately, the assessees, when they drafted the stay petitions, did not bear in mind these basic legal principles and vague averments have been set out, which appears to be not supported by any material. Thus, the assessees themselves have to be blamed for creating the present situation and there is no justification on their part to find fault with the orders passed by the authorities. On a reading of the stay petition filed before the first respondent and second respondent, one gets an impression that the matter was not pursued seriously. Had it been done, then obviously more care would have been taken to present the petition in a proper format. Therefore, the second respondent was fully justified in making an observation that mere filing an appeal against the assessment, will not be a sufficient reason to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, where addition on the same issue has been deleted by the Appellate Authority office memorandum the earlier year or decision of a Supreme Court or jurisdictional High Court is in the favour of the assessee. 21. Admittedly, there is no such plea raised by the assessees. In any event, the underlying principles which govern the matter of grant of interim orders have to be borne in mind as guiding principles for the authorities to consider the relief for grant of stay. The circular instruction binds the Assessing Officer, but not the Court. The Court can take into consideration the facts and circumstances to exercise discretion as to what would be the order, which will protect the interest of the revenue, and at the same time grant a reasonable relief to the assessee till the appeal is heard and disposed of. The object of grant of interim order is to preserve status-quo and not to make the appellate remedy infructuous or illusory. However, this principle cannot be straight away applied to Revenue matters, where a slight departure is required to be adopted. As pointed out earlier, the petitioner miserably failed to substantiate their contention that they are unable to mobilise fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee company can not be extended to the Managing Director, petitioner in W.P.Nos.6046 to 6052 of 2018. 24. In the result, (i)W.P.Nos.6040 to 6045 of 2018, are disposed of by directing the petitioner/assessee company to pay 5% of the tax demanded for each of the assessment years. The petitioner is granted three weeks time from the date of receipt of a copy of this order to effect such payment. On complying with the said condition, the assessee company is entitled to file a fresh stay petition before the third respondent clearly explaining as to how they are justified in seeking for an interim order along with supportive documents and on presentation of the petition, it is open to the third respondent to pass appropriate orders on merits and in accordance with the law. (ii) W.P.Nos.6046 to 6052 of 2018, being devoid of merits, are dismissed. This is so because, the reasons assigned by the company cannot be made applicable to its Managing Director, an individual. The petitioner/assessee is directed to pay 20% of the tax demanded for each of the assessment years and such payment shall be made within a period of three weeks from the date of receipt of a copy of this order, for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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