TaxTMI 
TaxTMI 
2019 (10) TMI 1410
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....r dated 30 May 2019 which is pending disposal before the Commissioner of Income Tax (Appeals). 2. By the impugned order dated 12 June 2019, the Respondent No.1 - Assessing Officer allowed the Petitioner's application for not being treated as an assessee in default (stay) on condition of the Petitioner depositing 20% of the disputed demand of Rs. 3601 crores i.e. Rs. 720 crores immediately. Being aggrieved the Petitioner filed the further representation on 14 June 2019 before the Respondent No.2 - Commissioner of Income Tax under Section 220(6) of the Act. This application for stay was disposed of by the impugned order dated 13 August 2019 of the Respondent No.2 - Commissioner of Income Tax who considered each head comprising of the disputed demand of Rs. 3601 crores and allowed the representation on deposit of Rs. 439 crores. 3. The impugned order dated 12 June 2019 of the Respondent No.1-Assessing Officer now stands modified by the impugned order date 13 August 2019 by Respondent No.2 - Commissioner of Income Tax. Thus, the impugned order dated 13 August 2019 being the final order would only be subject of examination in this Petition. 4. At the very outset the Petitioner ....
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.... 6. It is the case of the Petitioners that so far as Serial Nos. 1 (deduction for claim incurred but not reported), 2 (Exemption under Section 10(38) of the Act) and 5 (Amortization of premium) hereinabove are concerned, the same stands concluded in favour of the Petitioner either by virtue of decision of the Income Tax Appellate Tribunal (Tribunal) or the decision of this Court. Notwithstanding the above, the impugned order dated 13 August 2019 of Respondent No.2 - the Commissioner of Income Tax has directed them to deposit 20% of the disputed amounts under Item Nos.2 and 5 above and 10% of the disputed amount under Item No.1 above. It is further submitted that in the ordinary course by virtue of the Board Circulars/Instructions, a deposit of 20% of the disputed demand by an assessee who has filed the first appeal would be entitled to a stay of the balance demand till the disposal of the Appeal by the First Appellate Authority. In support reliance is placed by the Petitioner upon Instruction No.1914 dated 2 February 1993 as modified by the office memorandums dated 29 February 2016 and dated 31 July 2017 issued by the Central Board for Direct Taxes (CBDT). 7. So far as Item....
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....Mutual Funds v/s. ITO 345 ITR 71 and UTI Mutual Fund v/s. ITO in W.P.(L) No.523 of 2013 rendered on 6th March 2013 which can for the purposes of disposing an application of stay can be summarized as under: (a) The order on stay application must briefly set out the issue and the submission of the assessee/ applicant in support of the stay; (b) In cases where the assessed income under the impugned order far exceeds returned income so as to make the demand arbitrary or the issue arising for consideration stands concluded by a decision of an higher forum or where the order appealed against is in breach of Natural Justice or the view taken in the order being appealed against is contrary to what has been held in the preceding previous years (even if issue pending before higher forum) without there being a material change in facts or law, stay should normally be granted; (c) If not, whether looking to the questions involved in appeal, keeping in view the likelihood of success in appeal what part of the demand the whole(in case issue covered against the applicant by a decision of higher forum) or part of it and must be justified by short reasons in the order disp....
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....f Income Tax bearing in mind the yardstick laid down in the above decisions and the Circulars/Instructions of CBDT in the context of the submissions made by the parties. We are also taking into account the fact that the appeal before the Commissioner of Income Tax (Appeals) is ripe for hearing and is in fact fixed on 21 October 2019. Thus the appeal itself is in all likelihood will be decided in the near future. 11. So far as Issue No.1 above is concerned, the Petitioner submits that same stands concluded in its favour by virtue of the decision dated 11 October 2017 of the Mumbai Bench of the Tribunal in DCIT Circle 3(1)(2) vs. ECGC IT No. 7657/Mum/2014 and the Kolkata Bench of the Tribunal in the case of DCIT v/s. Mutual Insurance Co. Ltd. 2016 (72) Taxmann.Com 116 in favour of the Petitioner. However, the impugned order still directed a deposit of 10% of disputed demand on this Court in view of the decision of Chennai Bench of the Tribunal in the case of United India Insurance v/s. JCIT (2018) 97 Taxmann.com 466. We note that the Chennai Bench decision of the Tribunal has ignored the co-ordinate bench decision of Mumbai and Kolkata benches of the Tribunal. Therefore, prima fac....