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TMI Blog2018 (2) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... lance amount shall be paid on or before 25th February, 2018; the second installment shall be paid on or before 25th March, 2018; the third installment shall be paid on or before 25th April, 2018 and the fourth and last installment shall be paid on or before 25th May, 2018. (c) A partner of the applicant shall file an undertaking before this court, undertaking to abide by the terms and conditions imposed by this court under this order; (d) Under no circumstances any extension shall be granted in payment of such installments; AND (e) In case there is any default in payment of any installment as stipulated hereinabove, the interim relief shall stand vacated. - Civil Application (OJ) No. 21 of 2018 In In Tax Appeal No. 22 of 2018 With Civil Application (OJ) NO. 22 of 2018 In In Tax Appeal No. 21 of 2018 - - - Dated:- 1-2-2018 - Ms. HARSHA DEVANI AND MR. A. S. SUPEHIA, JJ. For The Applicant : MR SN SOPARKAR, SR. ADVOCATE, with MR BS SOPARKAR, ADVOCATE For The Respondent : MR MR BHATT, SR. ADVOCATE, with MRS MAUNA BHATT, ADVOCATE COMMON ORAL ORDER ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI ) 1. By these applications, the applicant seeks stay of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted, thus all the three factors stand satisfied in the case of the applicant and hence, the interim relief as prayed for deserves to be granted. 4. Vehemently opposing the applications, Mr. M.R. Bhatt, Senior Advocate, learned counsel for the respondent, submitted that the applicant has failed before the Assessing Officer, before the Commissioner of Income Tax (Appeals) as well as before the Income Tax Appellate Tribunal, all of whom have confirmed the demand against the applicant. It was submitted that the applicant had made an application for grant of installments for payment of outstanding tax demand, which came to be rejected on 15.12.2017 and the applicant was requested to pay the outstanding demand at the earliest. However, till date, the demand has not been satisfied. It was submitted that the subject property is a piece of open land and hence, there is no question of any irreparable injury being caused to the applicant if such property is sold in the auction. It was submitted that granting interim relief would deprive the revenue from recovering the tax dues from the applicant causing immense prejudice to the exchequer. It was submitted that the budgets are planned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other enterprise. The court observed that where matters of public revenue are concerned, it is of the utmost important to realise that interim orders ought not to be granted merely because a prima facie case has been shown. The balance of convenience must be clearly in favour of making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest. 4.2 Reliance was also placed upon the decision of the Supreme Court in the case of Indu Nissan Oxo Chemicals Industries Limited v. Union of India Ors ., (2007) 13 SCC 487 , for the proposition that on merely establishing a prima facie case, interim order of protection should not be granted. The court held that there can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because that court has indicated the principles, that does not give a licence to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injury can be said to be caused to the applicant if the interim relief as prayed for is not granted. It was submitted that the applicant had ample time to pay the outstanding tax demand, but failed to do so. Under the circumstances the interim relief as prayed for may not be granted and the applications, being devoid of merits, deserve to be dismissed. 5. In rejoinder, the learned counsel for the applicant submitted that the decision of the Supreme Court in the case of Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. Ors . (supra) would not be applicable to the facts of the present case inasmuch as the applicant is not even suggesting that it would furnish a bank guarantee in lieu of the demand. It was reiterated that the applicant is prepared to pay the full amount in such installments as may be deemed fit by the court. It was submitted that if the property were to be sold, irreparable injury would be caused to the applicant. It was urged that the balance of convenience also lies in favour of the applicant, inasmuch as the property is already attached by the revenue and, therefore, interest of the revenue is secured. It was submitted that insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proclamation of sale and settling the terms thereof. Thereafter, the proclamation of sale came to be issued on 16.01.2018 giving notice to the effect that in the absence of any order of postponement, the property shall be sold by the public auction at 11:00 a.m. on 02.02.2018. It appears that a copy of the said proclamation of sale came to be delivered on the applicant on the same day, that is, on 16.01.2018. Thereafter, the applicant has sought urgent hearing of the applications and accordingly, as noted hereinabove, the applications came to be taken up for hearing. 7. It may be noted that while the proclamation of sale refers to a sum of ₹ 1,08,44,505/, including costs and interest, it appears that the exact amount due and payable by the applicant towards the outstanding demand is not certain at the moment. The learned counsel appearing on behalf of the applicant has submitted that the applicant is ready and willing to pay whatever be the outstanding demand under the orders impugned in the appeals on such terms and conditions that the court may deem fit. 8. As noted earlier, the appeals have been admitted by framing substantial questions of law. Indubitably, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V. Parekh (supra) are concerned, as rightly submitted by the learned counsel for the applicant, the same were rendered in the context of indirect tax laws wherein the concept of undue hardship is required to be kept in view and would, therefore, not be applicable to the facts of the present case. 11. Examining the facts of this case in the light of the above decision, it is an undisputed fact that the demands in relation to the above referred two assessment years are outstanding. The applicant, however, has shown willingness to deposit the entire amount on such terms and conditions as may be deemed fit by this court. Moreover, under the relevant provisions of the Act, the revenue is entitled to statutory rate of interest on any delay in making such payment. Therefore, some delay in making payment of the outstanding amount would not cause much prejudice to the revenue. 12. On the other hand if the subject property is auctioned, irreparable injury is likely to be caused to the applicant, inasmuch as the property would be lost and in case the applicant succeeds in the appeals, it would not be possible to restore the statusquo ante . Under the circumstances, the court is of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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