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TMI Blog2021 (1) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... ty established by and under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. It is stated that basic objective of the petitioner is rehabilitation of slum dwellers in the city of Mumbai. 4. Petitioner is registered as an assessee under the income tax department. 5. For the assessment years 2011-12, 2012-13, 2013-14 and 2014-15 (briefly "the assessment years under consideration" hereinafter), petitioner had filed returns of income claiming benefit of exemption in terms of section 11 of the Income Tax Act, 1961 ("the Act" for short). However, petitioner was denied exemption under section 11 on the ground that it is not a valid trust and not entitled to benefit under Section 11. It may be mentioned that registration of the petitioner under section 12AA of the Act was cancelled by respondent No. 4 w.e.f. 01.04.2002, thus disentitling the petitioner from the benefit of exemption under section 11. 6. It is submitted that appeal filed by the petitioner against the said cancellation of registration is pending before the appellate authority i.e Tribunal. 7. In the meanwhile, respondent No. 4 passed assessment orders dated 19.02.2014, 25.02.2015, 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the petitioner to pay an additional amount of Rs. 100 crores in installments and on payment of the said amount, it was stated that stay would be granted on the balance demand. 13. Petitioner filed four separate applications before the Tribunal against the said order of respondent No. 2 dated 19.02.2020 in the four pending appeals. By order dated 20.03.2020, Tribunal directed the petitioner to deposit an amount of Rs. 20 crores i.e Rs. 5 crores for each assessment year in two installments subject to which stay was granted. 14. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 15. Respondents have filed affidavit. Stand taken in the affidavit is that registration of the petitioner under section 12AA of the Act was cancelled by the Director of Income Tax (Exemption) Mumbai on 27.03.2015 w.e.f. 01.04.2002. Appeal of the petitioner against such rejection order is pending before the Tribunal. Touching upon the merit of the case, it is contended that activity of the petitioner is not charitable having regard to the proviso to section 2(15) of the Act. Therefore, exemption under section 11 of the Act was denied to the petitioner for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s connection, he has referred to the decision of this Court in Hindustan Petroleum Corporation Ltd Vs. Union of India 2010 (256) E.L.T. 731 (Bom). 17. Per contra, Mr. Walve submits that Tribunal's order is in fact in favour of the petitioner. As against the order passed by respondent No. 2 directing the petitioner to deposit 100 crores for stay of the outstanding demand, Tribunal considered all aspects of the matter and thereafter scaled down the said figure to Rs. 20 crores that too payable in installments. In such circumstances, he submits that no prejudice has been caused to the petitioner by the impugned order of the Tribunal and, therefore, no interference is called for. On a query by the Court, he submits that department has no objection if the appeals of the petitioner including the one against cancellation of registration under Section 12AA of the Act are heard by the Tribunal expeditiously. 18. Submissions made by learned counsel for the parties have been duly considered. 19. From the documents on record, we find that in respect of the four assessment years, the total demand raised by the income tax department is Rs. 386,05,46,079.00 as against which petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule above, stay of the balance demand of Rs. 169.96 crores will be granted till the disposal of appeal by ld. ITAT, Mumbai." 23. As against this, petitioner preferred four stay applications corresponding to the four assessment years before the Tribunal which were heard together and thereafter disposed of vide order dated 10.06.2020. Relevant portion of the order passed by the Tribunal reads thus:- "4. We have considered rival submissions and perused the material on record. Learned counsel for the assessee had submitted before us that in assessment year 2009-10 the Tribunal has not only restored the registration granted under Sec. 12A of the Act but has also allowed assessee's claim of exemption. However, in our view, by virtue of amendment made to Sec. 2(15) of the Act by Finance Act, 2010, the issues relating to cancellation of registration under Sec.12AA of the Act as well as denial of exemption under Sec.11 of the Act have to be considered keeping in view the amended provisions of Sec.2(15) of the Act. The merits of these issues can be thrashed out exhaustively only when the appeals of the assessee are heard and not at the stage of hearing of stay applications. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing of the appeal on the date fixed. We further make it clear, in the event of non-payment of the amount of Rs. 20 crores as directed, the stay order would automatically stand vacated." 24. From a careful consideration of the order passed by the Tribunal, we find that Tribunal has substantially scaled down the condition imposed by respondent No. 2 by reducing the figure of Rs. 100 crores to Rs. 20 crores i.e Rs. 5 crores for each assessment year to be paid in two installments, subject to which recovery of the balance outstanding demand would remain stayed. On perusal of the said order, it cannot be said that Tribunal did not consider or did not follow the guidelines laid down by this Court while passing the impugned order. Mr. Raichandani may be right in saying that petitioner being a government undertaking, revenue's demand is secured but we are also conscious of the fact that merely because the assessee is a government undertaking, it cannot be treated on a different footing or as a separate category of assessee. Mere fact that it is in a position to safeguard the interest of revenue cannot be a ground to stay the demand. Tribunal has exercised its discretion while passi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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