9911796707
TMI Blog1990 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... eally no appeals were pending before the Tribunal, but it would appear that only some cross-objections were there. At one stage, the Revenue thought of putting forth an argument that this Tribunal has no powers to grant stay in a cross-objection but has powers to grant stay only in an appeal which was filed. However, at a later stage, the learned Departmental Representative very fairly stated that he would not take up this issue but would only take up the contention that if an assessee was really aggrieved with the order of the first appellate authority, he would have straightaway filed an appeal. The very fact that he waited for the Department to file an appeal and thereafter alone he filed cross-objections would show that he was not convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een allowed for the amount of Rs. 6,72,740 which figures in the calculation of the assessee. We have looked into these figures. We find that according to the revenue in the calculations made, the net increase in assets which is the starting point before allowing the deduction of Rs. 6,72,740, is Rs. 17,68,926. According to the assessee, in the cross-objection, there were two additions which were wrong in arriving at the net increase in assets---one was an amount of Rs. 5.96 lakhs relating to the bank balance and another was an addition of Rs. 1.80 lakhs relating to advance to the assessee's wife. Thus, according to the assessee, the actual increase in assets was only Rs. 8.73 lakhs against Rs. 17.68 lakhs which is the starting point in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s petition for payment of tax was discussed with the assessee and Shri K.C. Radhakrishnan, Assistant Commissioner today. The assessee has filed a cash flow statement, from which it is seen that the net surplus available in the business owned by him is only around Rs. 30,000 per month and whole thing is absorbed for repayment of term loan to the bank. The assessee, however, was informed that as the demand is more or less admitted to be payable, it is not possible to give time for payment on prolonged basis. After considerable discussion the assessee has agreed to pay a lump sum amount of Rs. 10 lakhs by the first week of December, 1989 by raising loan, etc. The assessee's request for payment of Rs. 30,000 per month for September, October and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was that if the assessee could not conform to the terms of the agreement, he should have approached the Commissioner which he did not do and, therefore, it was not a case for any interference. Lastly, he submitted on the basis of statements in a paper book that there is no prima facie case made out to show that there is reasonable chance of success in the cross-objection. For all these reasons he stated that we should vacate our order of interim stay particularly in view of the observations of the Supreme Court in the case of ACCE v. Dunlop India Ltd. [1985] 154 ITR 172. 5. The learned counsel for the assessee, on the other hand, stated that bringing the property to sale would result in irreparable damage or injury to the assessee and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid judgment of the Supreme Court is certainly binding on us and we are bound to follow the same and it is in the fight of these criteria that we proceed to consider this case. 7. We are unable to subscribe to the view that because certain contentions are raised in the cross-objection, they lose force or have lesser form than what would have happened if they were taken as grounds of appeal in an appeal filed by an assessee. ln order that litigation may come to an end, an assessee may choose not to file an appeal knowing the cost of litigation, etc. even though the assessee is prima facie dissatisfied with certain relief which was not allowed to him by the first appellate authority. But if the litigation is to be prolonged by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand was more or less admitted to be payable does not arise. According to the learned Departmental Representative, the assessee should have pointed out that the cross-objections had been filed. The filing of cross-objection is a statutory right exercised by him and merely because, according to the Revenue, no relief may have been due that would not alter the legal position of the assessee to have his cross-objections heard on merits. The entire agreement of 5-9-1989, if it may be so called, proceeded on the basis that the demand was more or less admitted to be payable. In the light of the cross-objections which were filed earlier, this, in our view, was not a correct premise. That apart, the agreement itself shows that the entire surpl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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