Elcid Co-Operative Housing ... vs Ito
2003 Latest Caselaw 482 Bom

ORDER

S.R. Chavhan, J.M.:

This stay application has been filed by the petitioner-assessee-appellant in respect of ITA Nos. 1745 to 1747/M/2003 for assessment years 1994-95 to 1996-97.

2. We have heard the arguments of both the sides and have also perused the record.

2. We have heard the arguments of both the sides and have also perused the record.

3. In this SA the petitioner-appellant seeks this Tribunal to stay the demand outstanding against the petitioner-appellant for the abovementioned three assessment years involved in the three IT appeals mentioned above. At the outset, we have heard the learned counsel regarding the permissibility to file one SA in respect of three assessment years involved in three appeals. The learned Departmental Representative also raised objection in respect of this. The learned authorised representative of assessee contended that as far as the stay petition is under one enactment, the assessee-petitioner can file one SA irrespective of the number of appeals and the number of assessment years involved therein. He has contended that this issue is covered in favour of petitioner by a decision of Tribunal, Bombay, in the case of Chiranjilal S. Goenka v. WTO (2000) 66 TTJ (Bom) 728. The learned Departmental Representative of revenue has contended that the Tribunal may consider the judgment and decide in accordance with law.

3. In this SA the petitioner-appellant seeks this Tribunal to stay the demand outstanding against the petitioner-appellant for the abovementioned three assessment years involved in the three IT appeals mentioned above. At the outset, we have heard the learned counsel regarding the permissibility to file one SA in respect of three assessment years involved in three appeals. The learned Departmental Representative also raised objection in respect of this. The learned authorised representative of assessee contended that as far as the stay petition is under one enactment, the assessee-petitioner can file one SA irrespective of the number of appeals and the number of assessment years involved therein. He has contended that this issue is covered in favour of petitioner by a decision of Tribunal, Bombay, in the case of Chiranjilal S. Goenka v. WTO (2000) 66 TTJ (Bom) 728. The learned Departmental Representative of revenue has contended that the Tribunal may consider the judgment and decide in accordance with law.

4. Considering the rival contentions as also the facts of the case together with the above referred decision of Tribunal, Bombay, we find that the issue is covered in favour of assessee inasmuch as the Bombay Tribunal has, in the above referred decision, held that one SA can be filed in respect of several appeals and several assessment years of an assessee when all the matters are under one enactment. This decision has been rendered with reference to section 253(7) read with r. 35A(l) of Tribunal Rules, 1963. As such, we respectfully follow the aforesaid decision and accordingly hold in favour of assessee-petitioner and reject the objections of learned Departmental Representative of revenue on this count.

4. Considering the rival contentions as also the facts of the case together with the above referred decision of Tribunal, Bombay, we find that the issue is covered in favour of assessee inasmuch as the Bombay Tribunal has, in the above referred decision, held that one SA can be filed in respect of several appeals and several assessment years of an assessee when all the matters are under one enactment. This decision has been rendered with reference to section 253(7) read with r. 35A(l) of Tribunal Rules, 1963. As such, we respectfully follow the aforesaid decision and accordingly hold in favour of assessee-petitioner and reject the objections of learned Departmental Representative of revenue on this count.

5. As regards the merits of SA, learned authorised representative of assessee petitioner has contended that the entire demand outstanding against the petitioner has been disputed by assessee-appellant in assessee's abovementioned three appeals. He has contended that out of a total demand of Rs. 17.97 lakhs, the assessee has already paid Rs. 10.35 lakhs, and now the balance is only Rs. 7.62 lakhs which after the rectificatory order of assessing officer now stands reduced to Rs. 3.16 lakhs. He has contended that the assessee does not have liquid cash to pay off the demand. He has also contended that the assessee has filed returns with 'Nil' income in each one of the three assessment years involved in the appeals in hand being assessment years 1994-95 to 1996-97 but the income in the three years has been assessed too high. He has contended that in the interest of justice, the demand outstanding against the assessee be stayed. As against the above, the learned Departmental Representative of revenue has contended that the demand outstanding against the assessee has resulted from the assessing officer's assessment order as confirmed by the first appellate authority and the assessee has not yet paid off the complete demand despite the rejection of assessee's SA by the first appellate authority. He has opposed this SA.

5. As regards the merits of SA, learned authorised representative of assessee petitioner has contended that the entire demand outstanding against the petitioner has been disputed by assessee-appellant in assessee's abovementioned three appeals. He has contended that out of a total demand of Rs. 17.97 lakhs, the assessee has already paid Rs. 10.35 lakhs, and now the balance is only Rs. 7.62 lakhs which after the rectificatory order of assessing officer now stands reduced to Rs. 3.16 lakhs. He has contended that the assessee does not have liquid cash to pay off the demand. He has also contended that the assessee has filed returns with 'Nil' income in each one of the three assessment years involved in the appeals in hand being assessment years 1994-95 to 1996-97 but the income in the three years has been assessed too high. He has contended that in the interest of justice, the demand outstanding against the assessee be stayed. As against the above, the learned Departmental Representative of revenue has contended that the demand outstanding against the assessee has resulted from the assessing officer's assessment order as confirmed by the first appellate authority and the assessee has not yet paid off the complete demand despite the rejection of assessee's SA by the first appellate authority. He has opposed this SA.

6. We have considered the rival contentions as also the relevant material on record, together with the legal position. In the case of Maharana Shri Bhagwat Singhji of Mewar (Late His Highness) v. ITAT & Ors. (1997) 223 ITR 192 (Raj), the Hon'ble Rajasthan High Court has held that when the assessed income is twice or more of the returned income, the demand outstanding against the assessee should be stayed. Respectfully following the aforesaid judgment of Hon'ble Rajasthan High Court, we stay the demand outstanding against the petitioner- assessee-appellant in three assessment years 1994-95 to 1996-97 for a period of 6 months from today or till the disposal of three related appeals, whichever is earlier. Considering the rival submission regarding granting to earlier hearing, we direct the Registry to fix the related appeals Nos. 1745 to 1747/M/2003 out of turn on priority basis on any working day in the month of June, 2003. Needless to observe that the assessee/authorised representative of the assessee will not seek adjournment.

6. We have considered the rival contentions as also the relevant material on record, together with the legal position. In the case of Maharana Shri Bhagwat Singhji of Mewar (Late His Highness) v. ITAT & Ors. (1997) 223 ITR 192 (Raj), the Hon'ble Rajasthan High Court has held that when the assessed income is twice or more of the returned income, the demand outstanding against the assessee should be stayed. Respectfully following the aforesaid judgment of Hon'ble Rajasthan High Court, we stay the demand outstanding against the petitioner- assessee-appellant in three assessment years 1994-95 to 1996-97 for a period of 6 months from today or till the disposal of three related appeals, whichever is earlier. Considering the rival submission regarding granting to earlier hearing, we direct the Registry to fix the related appeals Nos. 1745 to 1747/M/2003 out of turn on priority basis on any working day in the month of June, 2003. Needless to observe that the assessee/authorised representative of the assessee will not seek adjournment.

7. In the result this SA is allowed as indicated above.

7. In the result this SA is allowed as indicated above.