TMI Blog2019 (10) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... per incurium. In any case the CBDT Circular No. 530 dated 6 March 1989 states that stay of demand be granted where there are conflicting decisions of the High Court. This principle can be extended to the conflicting decisions of the different benches of the Tribunal. Thus, in the above facts the complete stay of the demand on the above head i.e. Item No.1 of the above chart was warranted in the Petitioner s favour. Issue No.2 of the above table is concerned we are informed that on further Appeal to the Tribunal, the demand attributable on the aforesaid head had been stayed on partial deposit and the Appeal is now fixed for hearing on 11 December 2019. However, we note the fact that while the impugned order of Commissioner of Income Tax directed the Petitioner to pay 20% on this issue, it has not indicated the reason it has chosen to follow the decision of the Commissioner of Income Tax (Appeals) for the earlier Assessment Year in preference to the decision of this Court in New India Assurance, [ 2018 (3) TMI 589 - BOMBAY HIGH COURT] . This when it is the Petitioner s contention that the amendment made in Rule 5 of the 1st Schedule to the Act will not affect the claim for deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by a Government of India undertaking under Article 226 of the Constitution of India challenges the order dated 12 June 2019 passed by the Respondent No.1 Assessing Officer and the order dated 13 August 2019 passed by the Respondent No. 2 - Principal Commissioner of Income Tax (Appeals). Both the impugned orders have been passed on the Petitioner s application for not being treated as an assessee in default under Section 220(6) of the Income Tax Act 1961(the Act), consequent to the Assessment order dated 30 May 2019 relating to the Assessment Year 2017-18 raising a demand of ₹ 3601 crores. The above applications were made by the Petitioner in respect of an appeal from the order dated 30 May 2019 which is pending disposal before the Commissioner of Income Tax (Appeals). 2. By the impugned order dated 12 June 2019, the Respondent No.1 Assessing Officer allowed the Petitioner s application for not being treated as an assessee in default (stay) on condition of the Petitioner depositing 20% of the disputed demand of ₹ 3601 crores i.e. ₹ 720 crores immediately. Being aggrieved the Petitioner filed the further representation on 14 June 2019 before the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it on sale of Investments 1592,75,81.738 6,62,87,81,429 20% 1,32,57,56,286 3. Disallowance u/s 36(1) (vii) of provisions for doubtful debts and provision for doubtful loans and Investments. 259,56,44,771 108,02,62,035 20% 21,60,52,407 4. Disallowance of write-off of diminution in value of investments. 55,64,38,885 23,15,80,149 20% 4,36,16,030 5. Amortization of Premium on securities 18,51,51,780 7,70,56,938 20% 1,54,11,388 6. Disallowance u/s 14A r.w. Rule 8D 30,93,37,339 12,87,40,800 0% 7. TP Adjustment of Corporate Guarantee Commission 1,99,50,135 83,02,898 20% 16,60,580 Total Demand to be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance of Section 14A of the Act is concerned, the Commissioner of Income Tax has directed a complete stay in view of the fact the issue stood covered in favour of the Petitioner by virtue of Tribunal decisions in the Petitioner s own case for the earlier Assessment Years 2006-07 to 2011-12. So far as other claims are concerned, Mr. Walve invited our attention to the impugned order so far as Item Nos.1,2 and 5 are concerned. On the reading of the same, it is submitted that direction of deposit of 10% and 20% is reasonable as there are decisions contrary to this Court and the Tribunal (Mumbai Bench) being relied upon by the Petitioner for grant of stay. In the above circumstances, he submits that there is no warrant to interfere with the impugned order dated 13 August 2019 of Respondent No.2 Commissioner of Income Tax. Thus he submits that the Petition be dismissed. 9. Before dealing with the rival submissions it would be useful to set out the parameters to be borne in mind while disposing of stay application as laid down by this Court. We refer to the following extract of the decision of this Court in Mumbai Metropolitan Region Development Authority v/s. Deputy Director of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand, it may take recourse to coercive action for which brief reasons may be indicated in the order (e) In exercising the powers of stay, the Authority should always bear in mind that as a quasi judicial authority it is vested with the public duty of protecting the interest of the Revenue while at the same time balancing the need to mitigate hardship to the assessee. Though the assessing officer has made an assessment, he must objectively decide the application for stay considering that an appeal lies against his order; the application for stay must be considered from all its facets and the order should be passed, balancing the interest of the assessee with the protection of the Revenue. The above guidelines are only illustrative and the authority concerned would have to have exercise his discretion in matters of stay on the facts of the case before him. Keeping in view of the above broad parameters we shall now examine whether the authorities have properly exercised their jurisdiction. Besides the above, we shall also keep in mind the Circulars/Instructions issued by the CBDT from time to time, directing the Officers of Revenue to the manner in which stay applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, the demand attributable on the aforesaid head had been stayed on partial deposit and the Appeal is now fixed for hearing on 11 December 2019. However, we note the fact that while the impugned order of Commissioner of Income Tax directed the Petitioner to pay 20% on this issue, it has not indicated the reason it has chosen to follow the decision of the Commissioner of Income Tax (Appeals) for the earlier Assessment Year in preference to the decision of this Court in New India Assurance (Supra). This when it is the Petitioner s contention that the amendment made in Rule 5 of the 1st Schedule to the Act will not affect the claim for deduction under Section 10(38) of the Act. No prima facie view on this is taken by the impugned order. Besides the decision of jurisdictional High Court is binding upon the Authority. Therefore, in the above view, no deposit should have been directed on this head of disputed tax. An unconditional stay of this demand at Item No.2 of the chart in the present fact was warranted. 13. So far as Issue No.5 in the above chart is concerned, we find that the impugned order dated 13 August 2019, does record the Petitioner s submission that this issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
