9911796707
TMI Blog2023 (2) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... hat petitioner is ready and willing to deposit an amount of 30 lacs within a period of 2 weeks. We accept such statement and direct the petitioner to deposit 30 lacs with the respondent no.1, within a period of 2 weeks. This is less than 10% of the tax demanded - considering the material placed before us, instead of a remand to consider the waiver application, interests of justice would be suitably served if the Petitioner deposits 10% of the demanded amount. Further, the hearing of the appeal on merits could be expedited. Order - Respondent No.1 is directed to hear the petitioner s appeal on merit on the condition that the petitioner shall deposit an amount of 30 lacs within a period of 2 weeks from today and the balance to make up 10% of the demanded amount within further two weeks from the date of first deposit. X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed demand on or before 13.12.2022 failing which, recovery proceedings would be initiated as per the Income Tax Act. The petitioner, being aggrieved by such orders passed by the respondents, filed present petition with the prayer clauses as set out below: 'A. For a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction thereby quashing and setting aside the Impugned Order dated 02.12.2022 passed by the Respondent No.1 bearing reference No.Stay/Pr.CIT/PNJ/2022-23 and the consequential Demand letter dated 05/12/2022, issued by the Respondent No.2 bearing letter No.ITBA/RCV/F/17/2022-23/1047808787(1). B. For an order staying the demand for the sum of Rs.7,81,21,752/-. C. That pending hearing and final disposal of this writ Petition, this Hon'ble Court may be pleased to stay the effect and operation of the Impugned Order dated 01/12/2022 passed by the Respondent No.1 bearing reference No. Stay/Pr.CIT/PNJ/2022-23 as well as the consequential demand letter dated 05/12/2022, issued by the Respondent No.2 bearing letter No. ITBA/RCV/F/17/2022-23/1047808786(1). D. Ex-parte ad interim relief in terms of prayer clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Officer 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. However, 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. Thus, 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 Princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter in hand. Rejection of such application without giving any reason clearly exhibit non-application of mind and, therefore, the matter needs to be considered in the light of explanation given by the petitioner in both their applications. The concerned authority must apply the principles of natural justice by giving the reasons for rejecting stay applications. 15. In the case of Kec International Ltd., v/s. B. R. Balakrishna and others 2001 SCC OnLine Bom 1229, the division Bench of this Court at the Principal Seat while considering stay of demand, laid down some guidelines which are as under:- '6... (a) While considering the stay application, the authority concerned will at least briefly set out the case of the assessee. (b) In cases where the assessed income under the impugned order far exceeds returned income, the authority will consider whether the assessee has made out a case of unconditional stay. If not, whether looking to the questions involved in appeal, a part of the amount should be ordered to be deposited for which purpose, some short prima facie reasons could be given by the authority in its order. (c) In cases where the assessee relies upon fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Further, the hearing of the appeal on merits could be expedited. In light of above observations, we dispose of the present petition by the following order:
O R D E R
I) Respondent No.1 is directed to hear the petitioner's appeal on merit on the condition that the petitioner shall deposit an amount of 30 lacs within a period of ₹ 2 weeks from today and the balance to make up 10% of the demanded amount within further two weeks from the date of first deposit. Thus, within four weeks from today, the Petitioner must deposit 10% of the demanded amount with the Respondents. The impugned order on pre-deposit is set aside subject to this condition.
II) In the meantime, and subject to compliance of the above condition of deposit of 10% of the demanded amount, there shall be a stay on the demand notices issued by the respondents.
19. We clarify that while considering the above aspects and the view taken by us, the matter on merits was not taken into consideration and all contentions of the respective parties are left open.
20. The Rule is made absolute in the above terms.
21. Parties shall act based on the authenticated copy of this order. X X X X Extracts X X X X X X X X Extracts X X X X
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