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03-06-2019, Rakesh P Sheth, HIGH COURT OF MADRAS

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2 months 1 week ago #9710 by amit
Section -
Order Date - 03-06-2019
Favouring -
Court - HIGH COURT OF MADRAS
Appellant - Rakesh P Sheth
Respondent - ITC
Justice - M.SUNDAR
Citation - 619Taxpundit126
Appeal No. - WMP.Nos.14025 & 14027 of 2019
Asstt. Year - 2012-13

Order

PER : Nithyaesh Natraj

Mr.Nithyaesh Natraj, learned counsel of M/s.Nithiyaesh & Vaibhav [Law Firm] is before this Court on behalf of the sole writ petitioner.

2. Mr.A.N.R.Jayaprathap, learned Junior Standing Counsel for Income Tax accepts notice on behalf of both the respondents.

3. By consent of both the learned counsel, the main writ petition itself is taken up for disposal.

4. The main writ petition itself was heard out, though the matter is listed under the caption 'FOR ADMISSION'. As mentioned supra, this is by consent of both the counsel considering the narrow scope of which the entire writ petition turns.

5. This petitioner is an income tax assessee and the entire writ petition pertains to assessment year 2012-2013.

6. Considering the narrow scope of the writ petition and the stated position of the learned Standing counsel for respondents, it may not be necessary to advert to the facts in great detail.

7. Suffice to say that the petitioner has preferred an appeal before the first respondent and has also taken out a stay petition therein.

8. Stay petition came to be rejected by an order dated 22.09.2017 bearing reference No.6102/PCIT-6/2015-16, which is called in question in the instant writ petition and the same shall therefore be referred to as 'impugned order' for the sake of convenience and clarity.

9. Adverting to the impugned order, learned counsel for petitioner submitted that it is not only cryptic, but it has given a complete go by to the parameters and determinants which have to be taken into account while disposal of stay petition of this nature.

10. Learned counsel for the writ petitioner drew the attention of this Court to an order dated 13.02.2019 of this Court in W.P.No.3849 of 2019 and submitted that in the said order, this Court has laid down the parameters and determinants which have to be taken into account in disposal of such a stay petition. In other words, according to learned counsel for writ petitioner, there is an adumbration of the mode and the manner in which the stay petitions of this nature have to be disposed of. Most relevant paragraphs are paragraphs 12 and 14, which read as follows:

'12. The Circulars and Instruction as extracted above are in the nature of guidelines issued to assist the assessing authorities in the matter of grant of stay and cannot substitute or override the basic tenets to be followed in the consideration and disposal of stay petitions. The existence of a prima facie case for which some illustrations have been provided in the Circulars themselves, the financial stringency faced by an assessee and the balance of convenience in the matter constitute the 'trinity', so to say, and are indispensable in consideration of a stay petition by the authority. The Board has, while stating generally that the assessee shall be called upon to remit 20% of the disputed demand, granted ample discretion to the authority to either increase or decrease the quantum demanded based on the three vital factors to be taken into consideration.

14 The disposal of the request for stay by the petitioner leaves much to be desired. I am of the categoric view that the Assessing Officer ought to have taken note of the conditions precedent for the grant of stay as well as the seeking stay filed by the petitioner is itself cryptic. However, as noted by the Supreme Court in the case of Commissioner of Income Tax vs Mahindra Mills, ((2008) 296 ITR 85 (Mad)) in the context of grant of depreciation, the Circular of the Central Board of Revenue (No.14 (SL-35) of 1995 dated April 11, 1955) requires the officers of the department 'to assist a taxpayer in

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