9911796707
TMI Blog2022 (11) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... l hardship. AO rejected the petitioner's application of a stay on the demand, without assigning any reasons. The petitioner accordingly approached the Principal Commissioner praying for stay of the demand, reiterating the specific grounds in that regard contending that the Assessing Officer has not applied his mind to the aspect of financial stringency and therefore the demand needs to be stayed. The fate of the petitioner before the Principal Commissioner was not different. Although other issues on merits are considered by the Principal Commissioner, we find that there are no reasons in the context of financial hardship, in both the orders passed by the Principal Commissioner being orders dated 11.08.2021 and order dated 29.12.2021. The case of the petitioner on financial stringency is not at at all considered in the perspective it ought to have been considered by the Principal Commissioner, after applying his mind to the specific plea as taken by the petitioners in that regard. Such plea was required to be decided by considering the facts and figures from the materials as placed on record, so as to determine by giving reasons as to whether the plea was at all genuine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in the present proceedings is in regard to the refusal of stay to the demand notices. We note the prayers as made in the petition: (a) this Hon'ble Court may be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the Petitioner's case and after examining the legality and validity thereof quash and set aside the Order dated 20th June, 2021 for the A.Y. 2008-09 and the Notices dated 5th August, 2021, 23rd August, 2021, 9th May, 2022, 8th June, 2022, 2nd August, 2022 and 29th August, 2022 and Orders dated 11th August, 2021, 17th November, 2021, 29th December, 2021 for the recovery of a part of the demand arising from the Order dated 20th June, 2021 for the A.Y. 2008-09. (b) this Hon'ble Court may be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing Respondent No.1 to forthwith withdraw and cancel the Order dated 20th June, 2021 for the A.Y. 2008-09 and the Notices dated 5th Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already assailed the assessment orders by filing an appeal before the Commissioner of Income Tax (Appeals) which are stated to be pending adjudication. In the meantime, the petitioner approached the Assessing Officer by an application dated 30.07.2021 praying for stay of the tax demand inter alia also contending that such demand is not justified on the ground of the assessment order being bad and illegal when considered on its merits. The petitioner also raised an issue on financial stringency contending that it would not make it possible for the petitioner to deposit the tax as demanded. The petitioner contended that the balance of convenience was in favour of the petitioner and a prima facie case made out by the petitioner for stay of the tax demand. The Assessing Officer by an order dated 11.08.2021 without assigning any reasons rejected the petitioner's stay application. Being aggrieved by such decision of the Assessing Officer the petitioner approached the Principal Commissioner of Income Tax, by an application dated 13.08.2021, inter alia, praying for stay of the demand in view of the pendency of the appeal and on the extensive grounds as made out by the petitioner in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office units, residences, oil tanker, cruise liner, barges, towing tugs, cranes, aircraft etc. Further it is also revealed from Suit 821 documents that the trading profits earned from the under invoicing of iron order exports by Salgaocar Group of Companies in India have also been utilised to invest in India as well as various foreign entities like Subarnarekha Port India, Ideal Port India, Vertex Newton Mumbai, Salgaocar Asia Pte Ltd, African Pte Ltd, Venus Shining Bulk Carrier, Salgaocar Swaziland, GIP general Trading LLC, Navy Impex LLC etc. In view of the above facts of the case, it can be said that the assessee is not able to prove any financial distress to the company to pay the demand.' On such reasoning the Principal Commissioner concluded that 10% of the tax is required to be remitted by the petitioner within 10 days of the receipt of the said demand in question. Accordingly, a fresh demand has been raised by the respondents by notice dated 29.08.2022 which was received by the petitioner on 03.09.2022. It is on such conspectus assailing the said orders the petitioner has approached this Court in the present proceedings. 9. Mr. Pardiwala has made extensive submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the pending appeal. According to Mr. Pardiwala what was necessary to be seen is the financial stringency as categorically pleaded by the petitioner in the stay applications. 12. On the other hand, Ms. Razaq, learned Standing Counsel for the Revenue at the outset has objected to the maintainability of the petitions. She would support the impugned orders. Ms. Razaq would contend that this is a clear case where the demands would be justified even when the Court considers the merits of the case. She would submit that the Court, thus ought not to interfere and more particularly when the appeal itself is pending the petitioner ought not to urge such issues and needs to comply with the demand of deposit of the 10% of the total amount of tax payable as assessed. 13. We have heard learned counsel for the parties and with their assistance we have perused the record. On perusal of the orders by which the stay of the demand has been rejected by the Assessing Officer as also by the Principal Commissioner of Income tax, we may observe that in the petitioner's application dated 30.07.2021 the petitioner had averred a categorical case of financial hardship. However, the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings. However, considering this limited issue with regard to the stay of demand, we are of the opinion that the Principal Commissioner needs to reconsider such issue and pass an appropriate order considering the issue of financial stringency as canvassed by the petitioner by furnishing reasons. In the light of the above discussion, we dispose of these petitions by the following order:- ORDER a) The Principal Commissioner of Income Tax is directed to hear the petitioner(s) on the stay application on the specific plea of the petitioner in regard to financial stringency and after granting an opportunity of a hearing to the petitioner(s), pass an appropriate order on such issue. Let such exercise be undertaken as expeditiously as possible and in any case within 2 months from today. b) In the meantime, till a fresh decision on such issue is taken, the impugned demands in question, relevant to these petitions shall not be acted upon by the respondents. 16. We clarify that considering the view taken by us, we have not considered the issue of maintainability of the petitions. 17. We further clarify that this order is in no manner any expression on the contentions of bot ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
