TaxTMI 
TaxTMI 
2004 (8) TMI 335
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....ncome was not accrued to the assessee in the year under consideration and the same was duly declared by it in the subsequent year on accrual basis. As regards the second major additions of Rs. 7,53,11,985 made by the Assessing Officer on account of alleged suppression of actual receipts for services rendered to the other group concerns, he submitted that this addition on account of notional income made by the Assessing Officer was arbitrary and the same being made on surmises and presumption, is not sustainable in law or on facts of the case. As regards the third addition of Rs. 2,29,35,808 made by the Assessing Officer on account of alleged non-genuine provision for expenses, he submitted that this addition was made by the Assessing Officer without considering the fact that no deduction in respect of corresponding expenses was actually claimed by the assessee-company in its return of income. He submitted that when the assessee-company preferred an appeal before the learned CIT(A) disputing the aforesaid additions made by the Assessing Officer, he not only confirmed the said additions but also enhanced the income assessed by the Assessing Officer at Rs. 12,14,60,320 to Rs. 19,89,26....
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....ot approached the Assessing Officer for stay of outstanding demand and since such request has been made to the learned CIT as recently as on 30th July, 2004, the assessee clearly has not availed the alternative remedies for getting the recovery proceedings stayed before approaching the Tribunal by means of the present application. In this regard, she relied on the decision of Mumbai Bench of ITAT in the case of RPG Enterprises Ltd. v. Dy. CIT [2001] 251 ITR 20 (A.T.) wherein the dual purpose of approaching the Commissioner for grant of stay of recovery of the disputed demand before approaching the Tribunal was explained by the Tribunal saying that on the one hand, the Department gets an opportunity to study the situation and gather the necessary data for evaluating the application for stay and on the other, there is always a possibility that Commissioner may grant stay of recovery by imposing conditions suitable to the Department which may be agreed upon even by the assessee. She also strongly opposed the request of the assessee for grant of out of turn hearing in his appeal placing reliance on the decision of Madras Bench of IT AT in the case of Olympia Paper & Stationery Stores v....
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....ion was rendered by the Hon'ble Apex Court in the context of stay of recovery of central excise duty and taking into consideration that in the case of excise duty representing indirect taxation the burden has already been passed on to the customer, their Lordships took a strict view wondering as to whether any interim relief in such case at all be given to the manufacturer, dealer and the like, appreciating the aspect of public interest. 5. As regards the other objection raised by the learned DR about the alternative remedies having not been availed by the assessee before approaching the Tribunal for stay relying on the decision of Mumbai Bench of ITAT in the case of RPG Enterprises Ltd., it is observed that the Tribunal itself, after explaining the dual purpose for insisting as to why the assessee should approach the Commissioner for grant of stay of recovery of disputed demand, found it expedient to grant the stay to the assessee in the said case despite the fact that stay was refused by the Commissioner to the assessee without speaking order and without affording an opportunity of being heard. In the case of ITO v. M.K. Mohammed Kunhi [1969] 71 ITR 815, Hon'ble Supreme Court ....
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....al where an order of stay is made as also the consequence of its non-disposal within the said time, it has become imperative for the Tribunal to fix the appeal of the assessee for hearing out of turn whenever stay is granted. There is also a concern persistently expressed by none other than the Revenue Department about the huge amount of tax arrears being locked up due to pending litigation followed by the requests being frequently and regularly made at administrative level for taking up the high demand cases for hearing and disposal by the Tribunal on priority which again need to be kept in view to decide the issue of granting priority hearing. In any case, there cannot be any prejudice being caused to the interest of the Revenue by grant of out of turn hearing of the assessee's appeal and it is entirely at the discretion of the Tribunal to deal with this matter as it may think fit and proper in the facts and circumstances of each case. 7. To summarise, the settled legal position is that the Tribunal, while granting interim relief in the form of stay of recovery of outstanding demand, is required to keep in mind all the four relevant factors like prima facie case, balance of co....