TaxTMI 
TaxTMI 
2021 (2) TMI 380
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.... by the Income Tax Officer, Ward-4(1), Thane i.e. respondent No.1 allowing the stay 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 u....
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....tions dated 29.02.2016 and 31.07.2017 on the basis of which conditional stay was granted subject 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 o....
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....n such circumstances, statement of Shri. Nilesh Bharani could not have formed the basis for making 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 ....
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.... to the order in original in writ jurisdiction without filing appeal as provided under the relevant 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 22.01.20....
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....hai Shah (supra) is extracted hereunder :- "11. We have heard rival submissions as well as considered the 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....
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....order for the assessment year 2012-13 shall be kept in abeyance. 14. Before parting with the record, we make it clear that the 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 no....