IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 560 OF 2009 WRIT PETITION NO. 560 OF 2009 WRIT PETITION NO. 560 OF 2009 Apcotex Industries Limited.. Petitioner vs Commissioner of Income Tax-10 Mumbai & ors .. Respondents .. Ms.Arti Vissanji with Mr.S.J.Mehta for Petitioner. Mr.Suresh Kumar for Respondents .. CORAM: F.I.Rebello and CORAM: F.I.Rebello and CORAM: F.I.Rebello and J.H.Bhatia, JJ J.H.Bhatia, JJ J.H.Bhatia, JJ DATED: 4th May, 2009 DATED: 4th May, 2009 DATED: 4th May, 2009 P.C. P.C. P.C. 1. Rule. Heard forthwith. 2. The petitioner has approached this Court against order dated 17th February, 2009. An appeal against the order of assessment is pending before the CESTAT. It appears that the appellant did not ask for stay in the appeal. However, the petitioner approached the A.O. seeking non-execution of the order of assessment based on the Circular issued by CBDT as the appeal was pending. The A.O.rejected the application against which the petitioner approached the Commissioner of Income Tax who by his order dated 17th February, 2009 has passed the following order: " Accordingly, the assessee is required to pay 50 % of the demand after adjusting the amount of payments already made or refunds adjusted or pending adjustment. In other words, 50 % of the demand is kept in abeyance and the balance demand after necessary adjustments is to be paid on 25.3.2009. 3. The petitioner is aggrieved by the said order. It is the contention of the petitioner that they are entitled to refund as set out in their communication dated 3rd March, 2009 addressed to the A.O. from Assessment Year 2003-04, two Assessment years 2006-07, the sum worked out to be about Rs.21,00,000/-. 4. We have heard learned counsel for the parties. After perusal of the order dated 17th February, 2009 in our opinion, what the learned Commissioner set out is: (a) 50 % of the demand is stayed and (b) In so far as balance 50 % amount is concerned, the amount of refund is to be adjusted and balance is to be paid. 5. In these circumstances, the amount of Rs.22,00,000/- will have to be adjusted against that 50 % .Demand is in the sum of Rs.52,76,482/- as such 50 % would be Rs.26,00,000/- and odd. From this amount of Rs.26,00,000/- a sum of Rs.22,00,000/- will have to be adjusted and balance therefore would be around Rs.4,00,000/-. The learned ACIT (10) (3) to consider whether the petitioner is entitled to the said refunds. In the event the petitioner is so entitled then to demand amount of Rs.4,00,000/-. If the petitioner is not entitled to all the amounts then to the extent the amounts are applicable to be adjusted. Balance to be deposited. The entire exercise to be completed within 4 weeks from today. 6. The petitioner to show his bonafides by depositing a sum of Rs.4,00,000/- within two weeks from today. Rule made absolute accordingly. No order as to costs. { J.H.Bhatia, J } { F.I.Rebello, J } { J.H.Bhatia, J } { F.I.Rebello, J } { J.H.Bhatia, J } { F.I.Rebello, J }