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TMI Blog2004 (4) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... .01 crores. Pursuant to the assessment a demand of Rs. 15.99 crores was raised which was amended under s. 154 to Rs. 15.34 crores, comprising of income-tax of Rs. 11.17 crores, the balance being interest. On appeal to the CIT(A) the disallowance was confirmed and an appeal to the Tribunal filed by the assessee is pending. 3. After the order of the CIT(A), the assessee approached the CIT-V,New Delhi, by means of application dt.10th March, 2004, seeking stay of the recovery of the demand. It was pointed out that out of the demand the assessee had paid Rs. 6.56 crores before the first appeal to the CIT(A) was disposed of and the balance outstanding was only Rs. 4.49 crores. It was pointed out that the AO has misconstrued the facts of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is before the Tribunal seeking stay of the demand till the disposal of the appeal for the following reasons: (a) The present outstanding, after payment of Rs. 1.5 crores in March, and Rs. 30 lakhs for April is Rs. 6,62,69,659. Out of this amount, the tax portion is only about Rs. 2.35 crores, which amounts to about only 23 per cent of the demand and the balance of 77 per cent consists entirely of interest. The assessee has thus paid a substantial part of the taxes. (b) The UK Co. is also assessed inBombay. As per the assessment order passed on it for the same year (copy filed) the distribution fee received by it from the assessee has been taxed in full in its hands and thus there is double-taxation of the same amount, once by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afford to pay the taxes it does not follow that it cannot approach the authorities or the Tribunal for stay, if it is otherwise shown that the other parameters for grant of stay are fulfilled or that enforcement of the demand would cause undue hardship to it. It was pointed out that "undue hardship" was not the same thing as "financial stringency" and connoted an entirely different concept in the sense that recovery of the taxes having regard to the other considerations, such as the existence of a prima facie case, the balance of convenience and the interests of the Revenue, would be harsh on the assessee. Our attention in this behalf was drawn to the following judgments: (i) JCT Ltd. vs. ITAT Ors. (2002) 178 CTR (Del) 394 : (2002) 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s earlier position and approaching the Tribunal for stay. All that can be done is only to direct the assessee to approach the authorities again for a revision of the instalments or for modification of the earlier orders. 10. In reply, the above argument was strongly refuted on behalf of the assessee and it was pointed out that the assessee never offered to adhere to any instalments and all that it had agreed to in its application before the CIT-V was only that it would pay Rs. 1.5 crores and that too was a measure of co-operation and to buy peace and no further instalments were agreed to. In fact, the request was that on payment of the above sum, the balance should be stayed till the disposal of the appeal. Our attention was drawn to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. Further, a bare perusal of the orders of the IT authorities shows that ultimately it would appear as if whether the payment of the distribution fee is to be allowed at the rate of 25 per cent or 17 per cent. With regard to the balance of convenience, we are of the view that it lies in favour of the assessee since both the assessee and the UK Co. have been taxed inIndiaand it prima facie would appear that there is double taxation. At any rate, such a claim made on behalf of the assessee has to be examined and the assessment order of the UK Co. filed before us, prima facie supports the assessee s contention. As regards the financial position, there is force in the plea of the assessee that merely because the assessee can afford to pay th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts from the CIT-V; it merely offered to pay Rs. 1.5 crores as a measure of co-operation and to buy peace of mind, and sought stay of the balance of the demand till the disposal of the appeal before the Tribunal. The fact that some instalments were given and the assessee complied with part of the order of the CIT-V is a matter in favour of the assessee with regard to its bona fides and on that ground it cannot be estopped from filing an application for stay before the Tribunal, if it later feels that it has grounds for seeking stay. Secondly, the assessee is not bound to approach the Departmental Authorities as a matter of law; there is no such requirement in law please see judgment of the Calcutta High Court in Susanta Kumar Nayak vs. Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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