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TMI Blog2021 (2) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... tay of demand application filed by the petitioner to the extent of 20% of the demand raised as well as the order dated 09.03.2020 passed by the Principal Commissioner of Income Tax-3, Thane i.e. respondent No.2 reiterating the earlier order of respondent No.1 dated 22.01.2020 by directing the petitioner to pay 20% of the outstanding demand. 3. Petitioner is an assessee under the Income Tax Act, 1961 (briefly "the Act" hereinafter). For the assessment year 2012-13 petitioner had filed e-return of income on 29.09.2012 declaring total income of Rs. 11,52,191.00. It appears that initial assessment order was reopened by the assessing officer i.e. respondent No.1 under section 147 of the Act and thereafter assessment order on reopening was passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to payment of 20% of the demand by the petitioner. On prima-facie case, it is stated that addition of Rs. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the addition to the income of the petitioner under section 69A of the Act. Therefore, petitioner has a good prima-facie case in appeal, but without considering this aspect, respondents had mechanically followed the instructions of the CBDT and ordered only conditional stay subject to payment of 20% of the demand which itself is a very high figure and would be oppressive to the petitioner considering the poor financial condition of the petitioner. 10. On the other hand, Mr. Sham Walve, learned standing counsel revenue has referred to the instructions of the CBDT and thereafter has taken us to the impugned orders. He submits that respondents have duly considered the case of the petitioner and after proper application of mind has granted s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Builders (supra) is concerned, no principle of law is laid down therein as in the facts and circumstances of the case Supreme Court did not find any reason to interfere with the order passed by the High Court. 12. Submissions made by learned counsel for the parties have received the due consideration of the Court. 13. Short point for consideration is whether the two impugned orders dated 22.01.2020 and 09.03.2020 are liable to be interfered with by granting complete stay of demand till disposal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pleadings on record. Only to satisfy ourselves as to whether a prima facie case had been made out by the petitioner seeking stay, we have given our attention to the assessment order dated 21st December, 2019. We find that the assessment order on reopening has been made primarily on the basis of certain entries (in coded language) made in the diary recovered from the premises of Shri Nilesh 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discussions and observations made in this order are only in the context of considering the prayer for stay of the petitioner and that the same should not in any manner be treated as final observations or findings on merit." 15. In so far the present case is concerned, here also the additions have been made primarily on the basis of the statement made by Shri. Nilesh Bharani and also on the basis of certain entries in the telephone diary. However, we find from the materials on record that though summons was issued to Shri. Nilesh Bharani for cross-examination by the petitioner, Shri. Nilesh Bharani did not appear on the date fixed and therefore he could not be cross-examined. Thus, we are prima-facie of the view that reliance placed on su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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