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TMI Blog2022 (2) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for any pre-deposit; B. In the alternative this Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ or order quashing and setting aside impugned order dated 17.6.2021 (annexed at Annexure A) as well as the first appeal order dated 5.9.2020 (annexed at Annexure H) and assessment order dated 10.3.2016 (annexed at Annexure B) and the matter may please be remanded to the assessing authority i.e. respondent No.3 for fresh assessment after giving due show cause notice and proper opportunity of hearing to the petitioner; C. Pending notice, admission and final hearing of this petition, this Hon'ble Court may be pleased to stay coercive recovery against the petitioner pursuant to the assessment order dated 10.3.2016 passed by the respondent No.3; C1. The impugned order dated 15th December 2021 (annexed at Annexure L) may please be quashed and set aside and the matter may please be remanded to the Tribunal / assessing authority without any requirement of pre-deposit or security; D. Ex parte ad interim relief in terms of prayer C may kindly be granted; E. Such further relief(s) as deemed fit in the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formed part of the assessment order. 9 The firm, thereafter, preferred a Second Appeal before the Tribunal. The Tribunal passed an order asking the writ applicant - firm for a pre-deposit of Rs. 10 Lakh. The order passed by the Tribunal for pre-deposit is at page : 15 of the paper book at Annexure : A. The operative part of the order passed by the Tribunal reads thus: "ORDER A. The appellant is hereby directed to deposit Rs. 10,00,000/- (20% of tax amount of Rs. 49,78,555/-) as a pre-deposit within the period of one month from the date of this order. B. Amount the appellant has paid as a pre-deposit at the stage of first appeal is adjusted against pre-deposit. C. No other interim remedy is granted against stay application. D. No order as to costs. E. The Registry is directed to place present matter for compliance of this order." 10 It also appears that since the writ applicant failed to deposit Rs. 10 Lakh towards pre-deposit, the Second Appeal came to be dismissed by the Tribunal. 11 In such circumstances referred to above, there are two orders before us which are a subject matter of challenge: the first order is dated 17th June 2021 passed by the Tribunal directing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty in entertaining the appeal even without insisting for the payment of tax with penalty or even a smaller sum. In the case on hand, we do not find any discussion as regards the prima facie case which has been put up by the writ-applicant. Straightway the order is passed for the purpose of pre-deposit. Such an approach may lead to injustice if a meritorious appeal is dismissed only on the ground of non-payment of the pre-deposit amount. Therefore, in appropriate cases, the First Appellate Authority is expected to exercise its discretion judiciously and it should not insist for pre-deposit, if otherwise the appellant is able to make out a strong prima facie case in his favour. 17 The Supreme Court in the case of Hindustan Steels Limited Rourkela vs. A. K. Roy [AIR 1970 SC 1401] has held that while considering the question of granting relief the Tribunal must exercise the discretion judicially in accordance with the well-recognised principles in that regards; it has to examine carefully the circumstances of the case and decide whether the case is one of those exceptions to the general rule. If the Tribunal, while exercising discretion, does not take note of the pertinent facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner or this Deputy Commissioner should have held the demand in abeyance as prayed by the petitioner/assessee. He does neither, but proceeds to communicate to the petitioner/ assessee that his application for stay is dismissed. The petitioner/assessee should pay 20% of the outstanding amount as prescribed in some Circulars of the Revenue and particularly, dated 29th February 2016 and produce the challan and seek stay of demand again, failing which collection and recovery will continue. 5.We are not concerned here with the Circular of the Central Board of Direct Taxes. We are not concerned here also with the power conferred in the Assessing Officer of collection and recovery by coercive means. All that we are worried about is the understanding of this Deputy Commissioner of a demand, which is pending or an amount, which is due and payable as tax. If that demand is under dispute and is subject to the appellate proceedings, then, the right of appeal vested in the petitioner/assessee by virtue of the Statute should not be rendered illusory and nugatory. That right can very well be defeated by such communication from the Revenue/Department as is impugned before us. That would m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand, unless the case falls in the category discussed in para (B) hereunder. (B) In a situation where, (a) 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 higher than 15% is warranted (e.g. in a case where addition on the same issue has been confirmed by appellate authorities in 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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