Stay of demand can be granted even if there is no financial hardship

UTI Mutual Fund vs. ITO (No. 2) (Bombay High Court)

The AO raised a demand on the assessee on the same lines as had been done in the preceding AY. Though in the preceding AY, the assessee had obtained a stay from the High Court (see UTI Mutual Fund vs. ITO 345 ITR 71 (Bom)), the AO refused to follow that for the present AY. The assessee filed a Writ Petition to challenge the refusal to grant stay. To oppose the grant of stay, the department relied on CIT vs. IBM India Pvt. Ltd where the Karnataka High Court had held that in matters involving large amounts due to the Revenue, an interim order of stay would be granted only in case of genuine financial hardship of the assessee and not otherwise. The Department argued that as the assessee did not have any financial hardship, the stay should be rejected. HELD by the High Court rejecting the department’s plea and granting stay of the demand:

The order of the Karnataka High Court in CIT vs. IBM India Pvt. Ltd cannot be read to mean that consideration of whether an assessee has made out a strong prima facie case for stay of enforcement of a demand is irrelevant. Nor is the law to the effect that absent a case of financial hardship, no stay on the recovery of a demand can be granted even though a strong prima facie case is made out. In considering whether a stay of demand should be granted, the Court is duty bound to consider not merely the issue of financial hardship if any, but also whether a strong prima facie raising a serious triable issue has been raised which would warrant a dispensation of deposit. That is a settled position in the jurisprudence of our revenue legislation. In CEAT Limited v. UOI 2010 (250) ELT 200 (Bom) it was held that “If the party has made out a strong prima facie case, that by itself would be a strong ground in the matter of exercise of discretion as calling on the party to deposit the amount which prima facie is not liable to deposit or which demand has no legs to stand upon, by itself would result in undue hardship of the party is called upon to deposit the amount.” Where a strong prima facie case has been made out, calling upon the assessee to deposit would itself occasion undue hardship. Where the issue has raised a strong prima face case which requires serious consideration as in the present case, a requirement of pre-deposit would itself be a matter of hardship. Also the manner in which the Revenue has sought to brush aside a binding decision of the Court in the case of the assessee on the issue of a stay on enforcement for the previous year has to be serious disapproved. The rule of law has an abiding value in our legal regime. No public authority, including the Revenue, can ignore the principle of precedent. Certainty in tax administration is of cardinal importance and its absence undermines public confidence.

See also R.P. David 86 ITR 699 (Mad) & KEC International Ltd 41 SOT 43 (Mum) where it was held that the fact that the assessee is financially sound and in a position to pay is not in itself a ground for refusing to exercise the discretion in granting the stay. See also Treatise On The Law & Practice Of Stay & Recovery Of Tax Arrears