1 WP : 2784/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2784 OF 2011 ICCONOL Petroleums Pvt. Ltd. … Petitioner. Vs. The Union of India & Ors. … Respondents Mr. P.D. Shah a/w Mr. Jai Sanghavi i/by PDS Legal for Appellant. Mr. Suresh Kumar, Advocate for respondents. CORAM : J.P. Devadhar & Smt. R.P. SondurBaldota, J. Date : 15th June 2011 P.C. : 1. Rule returnable forthwith. By consent taken up for final hearing. 2. This writ petition is filed to challenge the order of the I.T.A.T. dated 18th March 2011, whereby pending the disposal for the appeal, the I.T.A.T. has directed the assessee to deposit of Rs.20 lacs, so that balance demand raised, could be stayed till the disposal of the appeal. 3. In the present case, by re­assessment order passed under Section 147 of the Income Tax Act, 1961 for assessment year 2006­2007, 2 WP : 2784/2011 addition of Rs.3 Crores was made as income on account of suppressed sales based on the action taken by the Excise authorities. 4. Admittedly, the orders passed by the adjudicating authority under the Central Excise Act has been set aside by the CESTAT and the matter has been remanded back to the file of adjudicating authority for a fresh decision and the matter is still pending before the adjudicating authority under the Central Excise Act. In these circumstances, whether the I.T.A.T. was justified in directing the appellants to make deposit of Rs.20 lacs is the question for consideration. 5. The contention of the revenue is that the CESTAT while remanding the matter back to the file, the adjudicating authority has directed the petitioners to deposit Rs.5 lacs and therefore, the petitioner in the income tax proceedings must also be directed to deposit the amount. 6. In our opinion, the fact that the CESTAT while remanding the matter has directed the assessee to deposit of Rs.5 lacs and the assessee has deposited that amount cannot be the ground to hold that even under the Income Tax Act, the assessee must be directed to deposit some amount till the disposal of the appeal, 3 WP : 2784/2011 because proceedings before the authorities under the Central Excise Act are different from the proceedings under the Income Tax Act. Unless, the additions made constitute income under the Income Tax Act, any demand cannot be sustained. Therefore, till the I.T.A.T. on merits of the case arrived at a conclusion that there were suppressed sales independent of the orders passed under the Central Excise Act, it would not be proper to enforce the demand. 7. We are informed that the appeal pending before the ITAT is fixed for hearing on 26th July 2011. In these circumstances, in our opinion, it would be just and proper to set aside the order of the I.T.A.T. and direct the Tribunal to hear the appeal without insisting on predeposit. Accordingly the rule is made absolute in the above terms with no order as to costs. (Smt. R.P. SondurBaldota, J.) ( J.P. Devadhar, J.)