1990 PLP (Trib (PTD)

Date of hearing: 31st December, 1989. The above stay application has been filed by the applicant/assessee praying therein that the recovery of the outstanding amount of Rs. 1,67,564 towards the tax demanded be stayed till the disposal of ITA No. 262‑KB of 1988 89 and ITA. No. 1148‑KB of 1988‑89.

2. The brief facts leading to the filing of the above Miscellaneous Stay Application are that the applicant declared income of Rs. 46,869 which was assessed at Rs. 8,17,728 and a tax demand of Rs. 3,15,678 was created. The applicant challenged the additions of Rs. 1,00,000, Rs. 6,31,809 and Rs. 23,764 but, the findings of the ITO were upheld and confirmed by the CIT(A) and the sum of Rs. 1,42,790 was recovered under section 92 of the Income‑tax Ordinance, from the bankers of the applicant while recovery of the remaining amount of Rs. 1,67,264 was stayed by the CIT(A) till 31‑12‑1989, or the decision of the appeals pending before this Tribunal, whichever was earlier, and since the appeals were not yet decided the stay would come to an end today and the Department would proceed for recovery of the remaining tax due.

3. The learned A.R. of the applicant vehemently attacked the findings of the learned CIT(A) whereby he upheld the addition of Rs. 1,00,000 by way of cost of the house in dispute and Rs. 6,31,809 by way of profit on sale of building and submitted that both of them were in violation and contrary to the provisions of the Income‑tax Ordinance, and would not be sustained at the stage of second appeal. He further submitted that the applicant had a prima facie case and was likely to succeed on the above two issues which would result in reduction of an amount of Rs. 7,31,809 from the estimated income of Rs. 8,17,728 and which in consequence, would lower the tax liability to a very great extent with the result that no further recovery towards tax demand would be necessary from the applicant and, as a matter of fact, he would be entitled to refund out of the amount of Rs. 1,42,790 recovered from the bank account of the applicant. Mr. Shahid Jamal, the learned D.R. submitted that the findings of the two officers below with regard to the addition of the sums of Rs. 1,00,000 and Rs.7,31,809 were based on proper appreciation of the facts of the case and the relevant provisions of the law and could not be said to be arbitrary, whimsical or against the provisions of Income‑tax Ordinance and that the applicant was not entitled to claim stay of the outstanding tax demand.

4. After giving due consideration and from perusal of the material on record, we are of the view that the applicant had succeeded in making out a prima facie case inasmuch as the issues with regard to the addition of Rs. 1,00,000 and Rs. 6,31,809 are required to be examined and considered in detail and at present, could not be said as to whether the findings of the two officers below with, regard to the above two issues would not require interference and would be In view of the above, the applicant had made out a case for grant of stay. (5) Accordingly, the stay prayed for by the applicant is allowed for a period of three months or till the disposal of the aforesaid two appeals, whichever is earlier. M.B.A./900-T Stay granted.