9911796707
TMI Blog2021 (2) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement. In such circumstances, it cannot be said that petitioner does not have a good prima-facie case on merit. That apart, petitioner has pleaded financial hardship to meet the demand even to the extent of 20%. We direct that till disposal of the appeal by the CIT (Appeals), the demand raised pursuant to the assessment order dated 21.12.2019 for the assessment year 2012-13 shall be kept in abeyance. CIT (Appeals) shall make an endeavour to dispose of the appeal within a period of four months from the date of receipt of an authenticated copy of this order. We make it clear that observations made in this order are only for considering the prayer for stay and the same should not in any manner be construed as final observations or findings on merit. - WRIT PETITION NO.537 OF 2021 - - - Dated:- 4-2-2021 - UJJAL BHUYAN MILIND N. JADHAV, JJ. Mr. Devendra Jain i/by DHJ Legal, Advocate for the Petitioner. Mr. Sham Walve, Advocate for the Respondents. P.C. Heard Mr. Devendra Jain, learned counsel for the petitioner and Mr. Sham Walve, learned standing counsel revenue for the respondents. 2. By filing this petition under Article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay was granted subject to payment of 20% of the demand by the petitioner. On prima-facie case, it is stated that addition of ₹ 3,50,00,000.00 was made in the order of assessment on the basis of seized documents as well as statement of the partner of M/s. Evergreen Enterprises recorded under sections 131 and 132 of the Act. Since petitioner failed to provide satisfactory explanation regarding the transaction with M/s. Evergreen Enterprises the said amount was added to the income of the assessee under section 69A of the Act. Particular reference has been made to the statement of Shri. Nilesh Bharani recorded under section 132(4) of the Act who is one of the partners of the M/s. Evergreen Enterprises which indulged in activities of money lending and borrowing of unaccounted cash. Besides various entries in telephone diary etc. were seized which formed the basis for the above addition. 9. Mr. Devendra Jain, learned counsel for the petitioner submits that in the case Mayur Kanjibhai Shah Vs. Income Tax Officer, Writ Petition No.812 of 2020, decided on 13.03.2020, this Court had kept in abeyance the entire demand raised till disposal of appeal by the Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created by law for redressal of grievance and that too in a fiscal statute, writ petition should not be entertained ignoring statutory dispensation. He has also placed reliance on a decision of the High Court of Gujarat dated 19.10.2016 in the case of Karmvir Builders Vs. Principal Commissioner of Income Tax where also conditional stay of demand was granted by the Principal Commissioner of Income Tax. Special Leave Petition filed against the said decision was dismissed by the Supreme Court in [2020] 113 taxmann.com 139 (SC). He therefore submits that there is no error or infirmity in the impugned orders to warrant interference under writ jurisdiction. 11. In his reply submission, Mr. Devendra Jain contends that reliance placed on Raj Kumar Shivhare (supra) is misplaced inasmuch as the said decision pertains to challenge to the order in original in writ jurisdiction without filing appeal as provided under the relevant statute. Here petitioner has filed appeal; thereafter petitioner filed stay application under section 220(6) of the Act. The manner of disposal of such application is being questioned in the present proceeding. In so far the decision in Karmvir Build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Bharani in the course of search and seizure under Section 132 of the Act. The finding that the petitioner had lent/provided cash amount of ₹ 3.25 crores to M/s Evergreen Enterprises/Shri Nilesh Bharani was also reached on the statement made by Shri Nilesh Bharani. From the assessment order, we do not find that Shri Nilesh Bharani was subjected to any cross-examination by the petitioner; rather in the affidavit of the respondents it is stated that Shri Nilesh Bharani has retracted his statement made. Prima facie on the basis of coded language diary entries and retracted uncorroborated statement of an alleged beneficiary, perhaps, the additions made by the Assessing Officer is highly questionable. In such circumstances, we feel that instead of taking a mechanical approach by directing the petitioner to pay 20% of the tax demand or providing installments, respondent Nos.1 and 2 ought to have considered the prima facie case, balance of convenience and financial hardship, if any, of the petitioner. From the impugned order, we do not find that respondents had alluded to the above aspects. That apart, petitioner s appeal before the Commissioner of Income Tax (Appeals) is pending ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
