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TMI Blog2014 (2) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... company is considered excessive or unreasonable, then in that event, as in the earlier years the sub-brokerage paid @ 50% be allowed as an admissible expenditure - On that basis, the Petitioner would not be liable to pay anything more than about Rs.60.00 lakhs based on the detailed calculations given by the Petitioner – thus, interim stay on recovery is granted during the pendency of appeal before the CIT(A) – Decided in favour of Assessee. - Writ Petition (L) No. 259 of 2014 - - - Dated:- 7-2-2014 - Mohit S. Shah, C.J. And M. S. Sanklecha,JJ. For the Petitioner : Mr. F. V. Irani with Mr. Jitendra Jain and Mr. Atul K. Jasani For the Respondent : Mr. Suresh Kumar ORDER PC : 1. Rule. Respondents waives service. By consent, the Rule is made returnable forthwith and writ petition is taken up for hearing and final disposal. 2. By this petition under Article 226 of the Constitution of India, the Petitioner has challenged the orders dated 2 January 2014 and 20 January 2014 at Exhibits-O and Q respectively of the Assistant Commissioner of Income Tax, Circle-4(2), Mumbai and the Commissioner of Income Tax-4, Mumbai respectively. By the impugned orders dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther extension of stay with the Assistant Commissioner of Income Tax, Circle-4(2). However, the Assistant Commissioner of Income Tax by order dated 2 January 2014 rejected the application for stay in view of the fact that the stay granted by the Commissioner of Income Tax for A.Y.2010-11 by order dated 21 August 2013 has expired on 31 December 2013. On further application, the Commissioner of Income Tax-4 by order dated 20 January 2014 granted conditional stay of demand on further payment of Rs.3.00 crores by 31 January 2014 and balance 50% of the total demand of Rs.6.00 crores is stayed up to 31st March 2014 or up to the disposal of first appeal, whichever is earlier. However, the Assessing Officer is now seeking to make coercive recovery on the ground of non compliance of the above conditional stay order. 6. Learned counsel for the Petitioner in support of the petition submits that the impugned orders dated 2 January 2014 and 20 January 2014 rejecting stay are unsustainable for the following reasons : (a) Neither of the impugned orders have applied the principles laid down by this Court in case of KEC International Limited Vs. B.R.Balkrishnan and others {(2001)2510ITR-158 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 120608110 Tax on above income @ 30% 36182433 Add Surcharge @ 10% 3618243 39800676 Add Education cess @ 3% 1194020 40994697 Less Tax Deducted at source 2600488 38394209 Less Advance Tax paid on : 15.6.2009 50000 15.6.2009 50000 15.9.2009 4000000 15.12.2009 4000000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee; b. In cases where the assessed income under the impugned order far exceeds returned income, the authority will consider whether the assessee has made out a case for unconditional stay. If not, whether looking to the questions involved in appeal, a part of the amount should be ordered to be deposited for which purpose, some short prima facie reasons could be given by the authority in its order; c. In cases where the assessee relies upon financial difficulties, the authority concerned can briefly indicate whether the assessee is financially sould and viable to deposit the amount if the authority wants the assessee to so deposit; d. The authority concerned will also examine whether the time to prefer an appeal has expired. Generally, coercive measures may not be adopted during the period provided by the statue to go in appeal. However, if the authority concerned comes to the conclusion that the assessee is like to defeat the demand, it may take recourse to coercive action for which brief reasons may be indicated in the order; and e. We clarify that if the authority concerned complies with the above parameters while passing orders on the stay application, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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