TMI Blog2000 (12) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... relief to the assessee and instead of even examining merits of the recomputation, declined the claim for deduction under s. 80HHC per se on the ground that chartered accountant's certificate on 'Form No. 10CCAC' was an invalid certificate. The admitted defect in the chartered accountant's certificate was that Annexure A to the aforesaid certificate was on a performa which ceased to be effective from 1st April, 1992, onwards, though a revised certificate has since been filed before the lower authorities. The learned CIT(A) declined to admit the revised certificate and directed the AO to take deduction under s. 80HHC at nil. In effect, the CIT(A) directed enhancement of assessed income. With these compounded grievances, the assessee had file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indirect costs in terms of para 32.11 of the CBDT Circular No. 530. The learned counsel filed detailed statement to demonstrate that on making these adjustments which were claimed to be mandatory as per provisions of the IT Act, the s. 80HHC claim will in fact go up to Rs. 4,55,79,921 as against that of Rs. 3,09,84,137 originally claimed by the assessee, and as against Rs. 2,42,96,210 worked out by the AO in the orders impugned in appeal before us. It was then submitted that CIT(A) has not disposed of assessee's contentions on the legal grounds about the errors in computation of deduction under s. 80HHC, but has rejected the claim of s. 80HHC per se on a technical ground i.e., since the 'Annexure A' to certificate on 'Form No. 10CCAC was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ltd. (1985) 154 ITR 172 (SC). In response to bench's specific question about prima facie merits of computation of deduction under s. 80HHC by the AO, the learned Departmental Representative merely submitted that the demands raised by the AO have already been subject to judicial scrutiny by one appellate authority and, therefore, presumption has to be taken against the assessee. According to the learned Departmental Representative merits are required to be discussed only at the time of disposal of appeal itself. It was also submitted that grant of stay is not a matter of normal course and, therefore, merely because assessee has a good prima facie case stay should not be granted. On the strength of these submissions, the learned Departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that since these appeals are fixed for hearing within this month itself, the AO should refrain from giving effect to the CIT(A)'s orders impugned in this appeal, till these appeals are disposed of; order accordingly. 5. Before parting with the matter, we may make some observations on Revenue's objection, relying on Hon'ble Supreme Court's observations in Dunlop's case, to the stay petition on the ground that paucity of funds has not been sufficiently demonstrated and that for this reason alone stay should not be granted. Hon'ble Supreme Court has indeed decried 'the practice of granting interim orders merely because assessee is able to show a good prima facie case', but to appreciate true import of Hon'ble Supreme Court's censure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which High Courts were entertaining writ petitions under Art. 226 of the Constitution of India as also the cases in which disputed demands related to indirect taxes where burden has already been passed to the consumer. We cannot be oblivious to the distinction between nature of writ jurisdiction of the Hon'ble High Courts, and the nature of appellate jurisdiction of this Tribunal. In writ proceedings, Hon'ble High Courts step in only when fundamental rights of the petitioner are violated and therefore, they have to resist interfering in the matter until a clear case is made out that not only that an assessee has a strong prima facie case but also that there is a serious threat of infringement to petitioner's rights guaranteed under Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, but as luminosity of a judicial lamp in the light of which we have to perform our obligations of imparting justice. On principles governing the decision to grant stay, we undoubtedly find guidance from. Their Lordships' observations that though there are no hard and fast rules regarding grant of stay, but prudence, discretion and circumspection are called for and that stay should not be granted as a matter of course. Considerations about balance of convenience, question of irrepairable injury and implications to public interest are to be borne in mind. We are also conscious to the apprehension that "if the Tribunal proceeds to stay recovery of taxes or penalties payable by or imposed on the assessee as a matter of course, the Revenue wil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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