Wintrobe Associates (p) Ltd, Guwahati V. Income Tax Officer, Ward-2(2), Guwahati

SA 05/GTY/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0534 (ITAT-GUWAHATI)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 18-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI E COURT AT KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S.S. VISWANETHRA RAVI, JM] S.A. NO. 05/GAU/2019 (ARISING OUT OF ITA NO. 54/GAU/2019) ASSESSMENT YEAR: 2015-16 WINTROBE ASSOCIATES PVT. LTD..................................APPELLANT WINTROBE HOSPITAL, GNB ROAD, AMBARI, GUWAHATI 781 001. [PAN : AAACW 4955 D] ITO, WARD 2(2) GUWAHATI..........................RESPONDENT AAYAKAR BHAWAN, CHRISTIAN BASTI, GUWAHATI. APPEARANCES BY: SHRI SOMESH BOSE, PCA APPEARING ON BEHALF OF THE ASSESSEE. SHRI SANDIP SENGUPTA, JCIT, SR. DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MARCH 25, 2019 DATE OF PRONOUNCING THE ORDER : MARCH 25, 2019 O R D E R PER P.M. JAGTAP, VICE PRESIDENT BY THIS STAY APPLICATION, THE ASSESSEE IS SEEKING STAY OF OUTSTANDING DEMAND OF RS. 18,88,000/- FOR A.Y. 2015-16. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE IMPUGNED OUTSTANDING DEMAND HAS ARISEN AS A RESULT OF ADDITION MADE BY THE AO ON ACCOUNT OF CASH IN HAND AND SINCE THE SAID ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS NOT SUSTAINABLE EITHER IN LAW OR IN THE FACTS OF THE CASE, THE ASSESSEE HAS A GOOD PRIMA FACIE CASE TO SUCCEED ON MERIT IN THE APPEAL FILED BEFORE THE TRIBUNAL. HE ALSO SUBMITS THAT THE ASSESSEE HAS ALREADY PAID A SUM OF RS. 4,72,000/- AGAINST THE DEMAND OF RS. 23,60,000/- 2 S.A. NO. 05/GAU/2019 (A.Y. 2015-16) WINTROBE ASSOCIATES PVT. LTD. ORIGINALLY RAISED AND URGED THAT THE BALANCE OUTSTANDING DEMAND OF RS. 18,88,000`/- MAY BE STAYED. 3. THE LEARNED DR, ON THE OTHER HAND HAS STRONGLY OPPOSED THIS STAY APPLICATION FILED BY THE ASSESSEE. HE SUBMITS THAT THE ADDITION MADE BY THE AO GIVING RISE TO THE OUTSTANDING DEMAND AGAINST THE ASSESSEE HAS ALREADY BEEN CONFIRMED BY THE LD. CIT(A) AFTER CONSIDERING ALL THE SUBMISSIONS MADE BY THE ASSESSEE. HE CONTENDS THAT THE ASSESSEE, THEREFORE, CANNOT BE SAID TO HAVE A GOOD PRIMA FACIE CASE ON MERIT. HE ALSO SUBMITS THAT IF AT ALL THE TRIBUNAL IS INCLINED TO GRANT THE STAY OF OUTSTANDING DEMAND, THE ASSESSEE SHOULD BE DIRECTED TO PAY A FURTHER SUM SO THAT AT LEAST 50% OF THE OUTSTANDING DEMAND GETS RECOVERED. 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE SIDES AND HAVING REGARD TO ALL THE FACTUAL ASPECTS OF THE CASE WHICH ARE RELEVANT TO ASCERTAIN THE BALANCE OF CONVENIENCE SUCH AS PRIMA FACIE CASE OF THE ASSESSEE ON MERIT, THE FINANCIAL POSITION OF THE ASSESSEE ETC, WE ARE OF THE VIEW THAT THE STAY AS SOUGHT BY THE ASSESSEE OF THE OUTSTANDING DEMAND CAN BE GRANTED SUBJECT TO A FURTHER PAYMENT OF RS. 3,88,000/- BY THE ASSESSEE AGAINST THE OUTSTANDING DEMAND. WE ACCORDINGLY DIRECT THE ASSESSEE TO DEPOSIT A FURTHER SUM OF RS. 3,88,000/- AGAINST THE OUTSTANDING DEMAND BY 28 TH MARCH, 2019. SUBJECT TO THE SAID PAYMENT, THE BALANCE OUTSTANDING DEMAND IS DIRECTED TO BE KEPT IN ABEYANCE FOR A PERIOD OF 6 MONTHS OR TILL THE DISPOSAL OF THE CORRESPONDING APPEAL OF THE ASSESSEE BY THE TRIBUNAL WHICHEVER IS EARLIER. THE REGISTRY IS DIRECTED TO FIX THE SAID APPEAL FOR HEARING OUT OF TURN BEFORE THE NEXT TOURING BENCH / E-COURT. 3 S.A. NO. 05/GAU/2019 (A.Y. 2015-16) WINTROBE ASSOCIATES PVT. LTD. 5. IN THE RESULT, THE STAY APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MARCH, 2019 SD/- SD/- (S.S.VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 25/03/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. WINTROBE ASSOCIATES PVT. LTD., GNB ROAD, AMBARI, GUWAHATI 781 001. 2. ITO, WARD 2(2), GUWAHATI. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, GAUHATI BENCHES