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TMI Blog2018 (12) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... automatically get vacated and the matter would be heard in ordinary course. The balance outstanding demand was thus, stayed for period of 180 days from the date of order or till disposal of the appeals, whichever was earlier. The Tribunal had also dealt with each of the issues which were decided against the applicant and even the arguments of applicant in respect of the same were referred and even the comments made by the learned Departmental Representative for the Revenue were taken into consideration. The Tribunal had also asked the applicant to prove its case of financial difficulty and taking into consideration all the above said arguments and the evidences filed, the Tribunal held as under:- "11. We have heard the rival contentions and perused the record. In the present stay application, issue is in respect of demand created in the case of applicant which is on account of assessments framed under section 153A r.w.s. 143(3) of the Act for assessment years 2009-10 to 2013-14. For assessment year 2014-15, the assessment was completed under section 143(3) of the Act. The applicant trust was running various institutions and has been granted registration under section 12A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second aspect is the balance of convenience and the third aspect is the financial position of applicant. In respect of first aspect, we find that vis-à-vis denial of exemption under section 11 of the Act on regular receipts, the applicant prima facie has case in his favour. However, the issue of claim of exemption under section 11 of the Act on capitation fees received by the applicant is settled against the applicant by the decision of this Bench. The third aspect of the demand is the violation under section 13 of the Act on account of siphoning of funds by Mr.M.N. Navale to the extent of Rs. 24 crores. In respect of said sum of Rs. 24 crores, the applicant has pointed out that the addition has been made on substantive basis in the hands of Mr.M.N. Navle. Thus, we find that balance of convenience is in favour of applicant where the amount has already been added in the hands of Mr. M.N. Navle. However, in respect of income which is on account of capitation fees totaled Rs. 57.43 crores, we find no merit in the claim of applicant for stay of recovery of outstanding demand against the same. The balance demand which is recoverable on account of said addition works out to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative for the Revenue has pointed out that out of total FDRs of Rs. 10.97 crores, the amount utilized for bank guarantee is only Rs. 5.23 crores as per details filed by the applicant. Further, the available bank balances are to the tune of Rs. 6.60 crores. 14. The next aspect which has to be seen is the liquid funds of Rs. 103 crores which is the amount from State Government given to the applicant, which undoubtedly goes for running of institution but also include the payment of taxes, if any. Further, the surplus before depreciation which is available with the applicant from year to year is also available with assessee. Another aspect to be noted from the financial accounts submitted by the applicant is that it has given donation of Rs. 20.02 crores as reflected in Schedule II of Profit and Loss Account ending 31.03.2017, placed at page 76 of the Paper Book. 15. In the totality of the above said facts and circumstances, we are of the view that the applicant has prima facie case and balance of convenience for granting only partial stay of recovery of outstanding demand. We therefore, grant the stay of outstanding tax demand subject to the following conditions:- a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of issuing prerogative writs would not be exercised when the conduct of the petitioner is not clean. A petitioner seeking an extra ordinary relief from the Court is not only expected to come with clean hands but so keep it, till the disposal of the petition. In the above facts we are of the view that the conduct of the petitioner during the pendency of the petition disentitles it to any relief under Article 226 of the Constitution of India. Therefore we dismiss the petition. The Hon'ble High Court found the conduct of the President of petitioner (applicant) and even the Tax Recovery Officer was willfully disobedient of the order dated 28.11.2017. The Hon'ble High Court thus, held that prima facie civil contempt under section 2(b) of the Contempt of Courts Act, 1971 and criminal contempt under section 2(c)(ii) and (iii) of the Contempt of Courts Act, 1971 are to be initiated and taking suo motu notice of contempt, Registry was directed to issue two separate notices under the Contempt of Courts Act, 1971 against the President of applicant society Mr. M.N. Navale and Tax Recovery Officer. The Writ Petition filed by applicant was thus, disposed of vide order dated 05.01.2018. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal has been finally disposed of by the Hon'ble High Court vide order dated 27.09.2018, against which the applicant filed Special Leave Petition before the Hon'ble Supreme Court, which was dismissed only on 13.11.2018 and now on 16.11.2018, the applicant has moved the stay applications again before the Tribunal. The learned Authorized Representative for the applicant was time and again asked that since Writ Petition filed by applicant against original order of stay of assessee has been disposed of by the Hon'ble High Court then whether the Tribunal has any power to re-look into the same factual aspects and whether there is any change in the circumstances. The learned Authorized Representative for the applicant elaborately took us through the facts once again and also referred to different orders of the Hon'ble Bombay High and the Hon'ble Supreme Court and stressed that there are certain material changes and hence, the Tribunal has the power to re-adjudicate the issue of stay in the hands of applicant. When asked to clarify the material changes, he pointed out that difference in outstanding figures due to the banks, due to other parties and the Writ Petition filed by teac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble High Court vide separate order dated 27.09.2018. The order of the Hon'ble High Court reads as under:- "2. On an order passed by this Court on 5th January, 2018, dismissing the Writ Petition, inter alia, on account of a very objectionable conduct of the President of the original petitioner-applicant before us and that order having been unsuccessfully challenged before the Hon'ble Supreme Court, we do not think that by an oblique or indirect method, we should allow restoration of that Writ Petition which stands dismissed." 10. Consequent thereto, the applicant files Special Leave Petition before the Hon'ble Supreme Court and prayed for disposal of appeals pending before the Tribunal, which was also dismissed. In such scenario, the Tribunal which is lower in hierarchy to the Hon'ble Bombay High Court and the Hon'ble Supreme Court, has no power to revisit the issue on identical facts, except for the change in figures and may be for filing of Writ Petitions by teachers of applicant, which was not there while deciding original stay applications. Further, the learned Authorized Representative for the applicant has not pointed out any material change in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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