Agra Development Authority, Agra V. Dy.C.I.T., Agra

SA 1/AGR/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0768 (ITAT-AGRA)
• Duration Of Justice: 4 year(s) 10 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 30-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDERJI T SINGH
• Assessee Lawyers: R K AGARWAL; RAHUL AGARWAL S
• Keywords: Application of stay; Set aside
• Section: 12A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER S.A. NO.01/AGRA/2014 (ARISING OUR OF ITA NO.177/AGRA/2014) ASSESSMENT YEAR: 2009-10 AGRA DEVELOPMENT AUTHORITY, VS. DY. COMMISSIONER O F INCOME TAX, JAIPUR HOUSE, CIRCLE-I, AGRA. AGRA. (PAN AAALA 0081 F). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.K. A GARWAL & SHRI RAHUL AGARWAL, ADVOCATES RESPONDENT BY : SHRI INDERJIT SI NGH, CIT (D.R.) & SHRI AMIT SHUKLA, JR. D.R. DATE OF HEARING : 11.07.2014 DATE OF PRONOUNCEMENT : 11.07.2014 ORDER PER PRAMOD KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS STAY APPLICATION THE ASSESSEE APPLI CANT HAS SOUGHT A STAY ON COLLECTION/RECOVERY OF OUTSTANDING DEMANDS IN RESPE CT OF TAX AND INTEREST AGGREGATING TO RS.7,20,04,550/- IMPUGNED IN APPEAL BEFORE US FOR THE A.Y. 2009- 10. 2. THE APPLICANT BEFORE US IS A STATUTORY AUTHORITY CONSTITUTED UNDER UTTAR PRADESH URBAN PLANNING & DEVELOPMENT ACT, 1973 WITH THE OBJECTIVE OF PLANNING S.A. NO.01/AGRA/2014 A.Y. 2009-10 2 AND DEVELOPMENT OF AGRA CITY. THE APPLICANT WAS AL SO ENJOYING REGISTRATION UNDER SECTION 12A OF THE INCOME TAX ACT, 1961 BUT THE SAI D REGISTRATION WAS CANCELLED BY THE LD COMMISSIONER, AND SUBSEQUENTLY, THE SAID CAN CELLATION ORDER WAS SET ASIDE BY THIS TRIBUNAL. 3. IN THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O. DECLINED EXEMPTION UNDER SECTION 11 ON THE GROUND THAT THE CASE OF THE ASSES SEE IS HIT BY PROVISO TO SECTION 2(15) OF THE ACT. IT WAS IN THIS BACK DROP THAT TH E ASSESSMENT WAS COMPLETED ON THE ASSESSED INCOME OF RS.1,09,26,07,310/-. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE US BUT WITHOUT COMPLETE SUCCESS. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE US. THE ASSESSEE HAS A LSO FILED THIS STAY APPLICATION POINTING OUT THAT THE ASSESSEE HAS A PRIMA FACIE CA SE ON MERITS AND THAT THE BALANCE OF CONVENIENCE REQUIRES THE IMPUGNED OUTSTANDING DE MANDS TO BE STAYED PARTICULARLY AS THE HEARING OF QUANTUM APPEAL ITSEL F IS SCHEDULED BEFORE THIS TRIBUNAL ON 12.08.2014. 4. LD. COUNSEL FOR THE ASSESSEE TAKES US THROUGH VA RIOUS JUDICIAL PRECEDENTS AND ALSO ORDERS OF THE AUTHORITIES BELOW TO DEMONSTRATE THAT THE ASSESSEE APPELLANT HAS A STRONG PRIMA FACIE CASE IN APPEAL. HE SUBMITS THAT THE ASSESSEE APPLICANT IS INTER ALIA INVOLVED IN THE CRUCIAL ACTIVITIES SUCH AS BUI LDING AND MAINTENANCE OF ROADS ETC. WHICH IS OF VITAL IMPORTANCE. HE ALSO CONTEND ED THAT THE ASSESSEE APPLICANT IS S.A. NO.01/AGRA/2014 A.Y. 2009-10 3 CARRYING OUT THIS SIGNIFICANT PUBLIC OPERATION WITH THE HELP OF SPECIAL LOANS AVAILED BY THE ASSESSEE AND DIVERTING OF FUND FOR PAYMENT O F TAX AT THIS STAGE WOULD HAMPER CRUCIAL PUBLIC WORK BEING DONE BY THE ASSESSEE APPL ICANT. HE SUBMITS THAT SINCE THE ASSESSEE APPLICANT HAS A STRONG PRIMA FACIE CAS E ON MERITS AND THAT BALANCE OF CONVENIENCE IN ITS FAVOUR, THE COLLECTION/RECOVERY OF THE IMPUGNED DEMANDS MAY BE KEPT IN ABEYANCE TILL THE DISPOSAL OF APPEAL, IT IS A FIT CASE IN GRANT OF STAY. THE LD. COUNSEL HAS ALSO INVITES OUR ATTENTION TO THE J UDGMENT PASSED BY THE HONBLE ALLAHABAD HIGH COURT IN ASSESSEES OWN CASE WHEREBY MATERIALLY IDENTICAL DEMAND RAISED HAVE BEEN STAYED BY THE HONBLE ALLAHABAD H IGH COURT ON PAYMENT OF 15% OF THE PAYMENT. IT IS SUBMITTED THAT IN THE PRESEN T CASE AS AGAINST THE ORIGINAL AMOUNT OF RS.51,95,70,158/-, THE ASSESSEE HAS ALREA DY PAID MOST OF THE DEMANDS AND ONLY BALANCE OF RS.7,20,04,550/- REMAINS UNPAID . 5. LD DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAN D, STRONGLY OPPOSES THE STAY APPLICATION. HE CONTENTS THAT IT IS A NOT A C ASE OF PAUCITY OF FUNDS BECAUSE THE OUTSTANDING TAX DEMAND IS ONLY A SMALL PORTION OF L IQUID FUNS AVAILABLE WITH THE ASSESSEE APPLICANT. HE FURTHER CONTENDS THAT THE A SSESSEE APPLICANT HAS NOT APPROACHED THE ADMINISTRATIVE COMMISSIONER FOR STAY ON COLLECTION/RECOVERY OF OUTSTANDING DEMAND AND AS SUCH THIS STAY APPLICATIO N IS PREMATURED. HE URGES NOT TO ENTERTAIN THE STAY APPLICATION IN THE SITUATION IN WHICH THE ASSESSEE APPLICANT HAS NOT EXHAUSTED REMEDIES AVAILABLE TO THEM. D.R. FURTHER POINTS OUT THAT S.A. NO.01/AGRA/2014 A.Y. 2009-10 4 COLLECTION OF TAXES CANNOT BE STAYED IN A SITUATION IN WHICH THE ASSESSEE HAS SUFFICIENT FUNDS AND NO CASE IS MADE OUT THAT THE P AYMENT OF OUTSTANDING TAX WILL HAMPER THE FUNCTIONING OF THE ASSESSEES BUSINESS. IT IS ONCE AGAIN POINTED OUT THAT THE PAYMENT OF THIS OUTSTANDING DEMAND WILL NOT IN ANY EVENT AFFECT FUNCTIONING OF THE ASSESSEE APPLICANT AND THEREFORE IT IS NOT A FI T CASE FOR GRANT OF STAY. IN THE REJOINDER THE COUNSEL FOR THE ASSESSEE ONCE AGAIN R EITERATED HIS SUBMISSIONS AND POINTED OUT THAT THE STAY IS NOT BEING SOUGHT ON TH E GROUND OF PAUCITY OF FUNDS ALONE AND THAT MERELY BECAUSE THE ASSESSEE HAS AVAI LABLE FUND IN HIS BANK ACCOUNT IT DOES NO IMPLY THAT THE PAYMENT OF OUTSTANDING DE MAND IN SUCH A SITUATION WILL NOT HAMPER ITS DAY TODAY BUSINESS OPERATION. IN AN Y EVENT, HE POINTS OUT THAT THE HEARING IS SCHEDULED FOR 12.08.2014 AND AS SUCH THE RE IS NO GOOD REASON FOR THE REVENUE AUTHORITIES TO SHOW ANY UNDUE HASTE IN COLL ECTION/RECOVERY OF THE DEMANDS. HE THUS URGES US TO GRANT THIS STAY IN CO LLECTION/RECOVERY OF DEMANDS TILL THE RELATED QUANTUM APPEAL IS DISPOSED OF. 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD. WHILE AT THIS STAGE WE ARE NOT INCLINED TO ADDRESS OURSEL F TO THE MERITS OF THE CASE, SUFFICE TO SAY THAT THE ASSESSEE HAS A PRIMA FACIE ARGUABLE CASE ON MERITS. THE ASSESSEE IS A GOVERNMENT UNDERTAKING AND CONSIDERING THE FACT THA T THE HEARING OF APPEAL ITSELF SCHEDULED FOR NEXT MONTH THERE IS NO SERIOUS PREJUD ICE BEING CAUSED TO THE LEGITIMATE INTEREST OF THE REVENUE BY GRANT OF STAY TILL THE APPEAL ITSELF IS DISPOSED S.A. NO.01/AGRA/2014 A.Y. 2009-10 5 OF. WE HAVE ALSO NOTED THAT THE ASSESSEE APPLICANT HAS ALREADY PAID A SUBSTANTIAL PART OF TAX DEMANDS IN DISPUTE. KEEPING IN VIEW OF THESE FACTORS, AS ALSO ENTIRETY OF THE CASE, IN OUR CONSIDERED VIEW, ENDS OF JUSTICE R EQUIRE A STAY ON COLLECTION/RECOVERY OF IMPUGNED DEMEANS TILL THE AP PEAL IS DISPOSED OF, TILL SIX MONTHS FROM THE DATE OF THIS ORDER OR TILL FURTHER ORDERS - WHICHEVER IS EARLIER. THIS IS SUBJECT TO CONDITION THAT THE ASSESSEE SHALL NOT SEEK ANY ADJOURNMENT OR RESORT TO DELAYING TACTICS IN DISPOSAL OF THIS APPEAL. IN THE EVENT THE ASSESSEE IS SEEKING ADJOURNMENT WITHOUT SUFFICIENT REASON, THEN THIS ST AY SHALL STAND VACATED. WITH THESE OBSERVATIONS THE STAY ON COLLECTION/RECOVERY OF OUTSTANDING DEMAND AS PRAYED FOR BY THE ASSESSEE IS GRANTED. 7. IN THE RESULT, STAY APPLICATION IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 11.07.201 4) SD/- SD/- (BHAVNESH SAINI) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOU NTANT MEMBER DATE: 11 TH JULY, 2014 PBN/* COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY