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TMI Blog2019 (12) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it cannot be treated as an order from which appeal lies. It is relevant to note that the Appellant / writ Petitioner is free to substantiate the contentions in the writ petition with regard to the 'main reliefs' and also as to the necessity to have the appeal / stay petition stated as filed before the 2nd Respondent to be finalized within a specific time. Similarly, the observation made by the learned Single Judge in the 'last sentence' of the order under challenge, that it is open for the writ Petitioner to move the Assessing Officer / 3rd Respondent to have relaxation in any manner and as to the alleged futility in this regard (having already moved the said authority and also the higher authority / 1st Respondent) could be highlighted in the course of final hearing. In the said circumstance, the appeal is dismissed as not maintainable, without prejudice to the rights and liberties of the Appellant to substantiate the merit involved with reference to the main prayers sought for in the writ petition. - Writ Appeal No. 584 of 2019 - - - Dated:- 19-12-2019 - Hon'ble Shri P. R. Ramachandra Menon, Chief Justice And Hon'ble Shri Parth Prateem Sahu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of the case, the Appellant had moved this Court by filing WPT No. 5414/2008, where an interim order was passed on 26.09.2008 with liberty to the assessment proceedings to go on, but prohibiting the passing of any final order. Later, the writ petition was withdrawn on 04.12.2008 and the authorities initiated fresh proceedings by issuing notices under Sections 142(1) and 143(2) of the IT Act. 5. After completion of the procedural formalities, the assessment was finalized on 09.02.2019. The grievance of the Appellant is that the assessment is a 'high-pitched' one; insofar as it casts a huge tax liability upon the Appellant and the income assessed is several times higher than the returned income, which would lead to the closure of business of the Appellant. It is stated that the assessment is on the basis of presumptions and conjunctures; that the Assessing Authority has issued notice to various liquor retailer licensees at the addresses made available to the Department by the Excise Authority (some of whom had turned up by filing replies and some of whom had sought for adjournment) seeking for details regarding the 'source of cash' which they had util ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h other higher officer as mentioned therein) to grant stay during pendency of the appeal, on payment of 15% of the disputed demand {under Heading (A)}. The course of action to be pursued, when payment of an amount higher than 15% was warranted or if lesser amount than 15% was enough, was provided under sub-clauses (a) and (b) respectively of the Heading (B). Under the Heading (C), right was reserved to the Assessee to move the higher authorities, if he was aggrieved by the condition of satisfaction of 15% of the disputed amount for availing the benefit of stay. Paragraphs 4 (A), (B) and (C) of the said Circular are extracted below : 4. In order to streamline the process of grant of stay and standardize the quantum of lump sum payment required to be made by the assessee as a pre-condition for stay of demand disputed before CIT (A), the following modified guidelines are being issued in partial modification of Instruction No. 1914: (A) In a case where the outstanding demand is disputed before CIT(A), the assessing officer shall grant stay of demand till disposal of first appeal on payment of 15% of the disputed demand, unless the case falls in the category disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the outstanding demand is disputed before CIT(A) the Assessing Officer shall grant stay of demand till disposal of first appeal on payment of 15% of the disputed demand. unless the case fall in the category discussed in para (B) there under Similar reference to the standard rate of 15% have also been made in succeeding paragraphs therein. The matter has been reviewed by the Board in the light of feedback received from field authorities. In view of the Board's effort to contain over pitched assessments through several measures resulting in fairer and more reasonable assessment orders, the standard rate of 15% of the disputed demand is found to be on the lower side. Accordingly it has been decided that the standard rate prescribed in O.M. dated 29.2.2016 be revised to 20% of the disputed demand, where the demand is contested before CIT(A). Thus, all references to 15% of the disputed demand in the aforesaid O.M. dated 29.2.2016 hereby stand modified to 20% of the disputed demand other guidelines contained in the O.M. dated 29.2.2016 shall remain unchanged. 9. The case of the Appellant is that, after passing the assessment order, the Appellant moved the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to a situation where the assessment is pursuant to 'Search and Seizure' are also revealed therefrom. In the instant case, the proceedings were initiated, admittedly, pursuant to a 'Search and Seizure' and the Department had collected various documents / incriminating circumstances, which were analysed, leading to the assessment. The evasion of tax in an organized manner was brought to light in the said proceedings; that too over a period of years and the facts and figures have been clearly discussed by the Assessing Authority. This aspect has been specifically taken note of by the learned Single Judge while rejecting the interim relief as per the order under challenge and hence no interference is warranted; submits the learned standing counsel. 12. The learned counsel for the Appellant submits that the power vested upon the Department / Assessing Authority has not been properly exercised and no reason has been given in the orders under challenge with regard to the benefit of interim stay claimed by the Appellant, when it was turned down. The Circulars issued by the CBDT are having binding effect upon the Departmental authorities and according to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Authority/Quasi- Judicial Authority deciding the merit of the appeal/I.A. for stay. In other words, it is a self-imposed departmental restraint on the demand/ recovery, to be raised/pursued, which cannot affect the statutory power conferred upon the Appellate Authority. This discussion is made only in view of the lengthy submissions made by the learned counsel for the Appellant with regard to the 'scheme of the taxation jurisprudence' and never to say, if the Appellant is actually entitled to get a stay as sought for or not. 14. Coming back to the challenge raised against the order passed by the learned Single Judge, the primary question to be considered is whether any 'interim relief' as sought for in the I.A. could have been granted to the Appellant / writ Petitioner. The prayer in the I.A. is as follows: That, this Hon'ble Court may kindly be pleased to direct the respondents not to initiate any recovery proceedings against the petitioner and also stay the effect and operation of the order dated 05.07.2019 being Annexure P/8 and assessment order dated 09.02.2019 being Annexure P/3 till the disposal of this petition. The w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations, [See : Assistant Collector of Central Excise, West Bengal v. Dunlop India Ltd Ors., 1985 (1) SCC 260 at p. 265; State of Rajasthan Ors. v. M/s Swaika Properties Anr., 1985 (3) SCC 217 at p. 224]. 13. In the instant case since there is serious dispute on facts it cannot even be said that a prima facie case had been made out for grant of an interim order in favour of the respondents which enables them to have the reimbursement of the sum of ₹ 95,000/- that was debited to their account in view of the encashment of the cheque in question. We are of the view that this was not a case in which the High Court while admitting the Writ Petition should have passed an interim order giving such a direction. In the circumstances we are unable to uphold the said interim order. In the above circumstance, by virtue of the law declared by the Supreme Court, the prayer in the I.A. being the 'main relief' sought for in the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally affects rights of the parties having bearing on the final adjudication of the case, then even though the order is interim, it cannot be termed as interlocutory order and an appeal would lie. An appeal would also lie against those orders which cannot be undone at the time of final hearing and which have an element of finality attached to them. The orders, effect of which cannot be undone at the time of final hearing, cannot be termed to be interlocutory orders and in such eventuality, an appeal would lie against such orders. From the above, it is quite clear that unless the order finally adjudicates the lis, it cannot be treated as an order from which appeal lies. 18. It is relevant to note that the Appellant / writ Petitioner is free to substantiate the contentions in the writ petition with regard to the 'main reliefs' and also as to the necessity to have the appeal / stay petition stated as filed before the 2nd Respondent to be finalized within a specific time. Similarly, the observation made by the learned Single Judge in the 'last sentence' of the order under challenge, that it is open for the writ Petitioner to move the Assessing Offic ..... 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