- (1.) Heard Sri Ritesh Kumar Agrahari, learned counsel for the petitioner, and Sri Bharat Ji Agarwal, learned Senior Advocate, assisted by Sri Ritesh Jain, for the department. By consent of learned counsel for the parties, the writ petition is being finally decided. This writ petition has been filed praying for quashing the order dated 19 March, 2012 passed by the Commissioner of Income Tax (Appeals) by which the stay application filed by the petitioners in appeal has been disposed of by allowing it partly directing the assessee to pay 30 percent of the total demand.
(2.) Learned counsel for the petitioner in support of the writ petition, contends that the Commissioner of Income Tax (Appeals) having himself found in the order impugned that "I find enough strength in the plea of the assessee for stay of demand" there was no occasion to direct for depositing 30 percent of the total demand. He submits that in view of the aforesaid prima facie opinion formed by the Commissioner, it was a fit case for stay of the total demand. He further submits that the case was covered by Section 194-C and was not governed by Section 194-I which was apparent from looking into the contract of service and other materials which were before the authorities themselves. He has placed reliance on judgment of Gujarat High Court in Tax Appeal No. 1037 of 2009 (Commissioner of Income Tax (TDS) vs. Swayam Shipping Services Pvt. Ltd.) decided on 11.01.2011.
(3.) Shri Bharat Ji Agarwal, learned Senior Advocate, appearing for the partial interim relief even if it was a prima facie case. He has placed reliance on paragraphs 7 and 11 of the judgment of the Apex Court dated 9th February, 2009 in the case of M/s Pennar Industries Ltd. vs. State of Andhra Pradesh.;