SHRI RAVINDER AGGARWAL, JAMMU V. DEPUTY COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE, JAMMU

SA 11/ASR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6248 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-08-2018
• Assessment Year: 2013-2014
• Appeal Filed On: 09-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Application of stay
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER STAY APPLICATION NO.11(ASR)/2018 (ARISING OUT OF I.T.A NO.408/ASR/2018) ASSESSM ENT YEAR: 2013-14 SH. RAVINDER AGGARWAL, S/O SH. ROSHAN LAL, R/O 116, JULLAKHA MOHALLA, JAIN BAZAR, JAMMU [PAN:AMXPK 7889C] VS. ASST. CIT, CENTRAL CIRCLE, JAMMU (APPLICANT) (RESPONDENT) APPELLANT BY: SH. SURINDER MAHAJAN, CA RESPONDENT BY: SH. ALOK KUMAR, CIT-D.R. DATE OF HEARING: 24.08.2018 DATE OF PRONOUNCEMENT: 24.08.2018 ORDER PER SANJAY ARORA, A.M THE INSTANT STAY PETITION BY THE ASSESSEE IS IN RES PECT OF ITS CAPTIONED APPEAL BEFORE THE TRIBUNAL, SEEKING STAY OF OUTSTANDING DE MAND OF RS. 60.74 LACS, COMPRISING TAX AND INTEREST THEREON AS DETERMINED O N ASSESSMENT U/S. 153A OF THE INCOME TAX ACT, 1961 (CALLED HEREINAFTER AS THE AC T) DATED 9/3/2016 PURSUANT TO A SEARCH U/S. 132 OF THE ACT AT THE ASSESSEES BUSI NESS PREMISES ON 03/9/2013. 2. TAKING US THROUGH ITS LETTER DATED NIL U/S. 132 (4) (PGS. 5-7 OF THE WRITTEN SUBMISSIONS), IT WAS SUBMITTED BY THE LD. COUNSEL, SH. SURINDER MAHAJAN, THAT THE ASSESSEE HAD SURRENDERED A TOTAL SUM OF RS.10.25 CR . IN VARIOUS NAMES, INCLUDING THE ASSESSEE, FOR A.Y.2014-15. RETURNS FOR A.Y.2014 -15 WERE ACCORDINGLY FILED, S.A. NO.11(ASR)/2018 (ARISING OUT OF I TA NO.408(ASR)/2018. A.Y.2013-14) RAVINDER AGGARWAL, JAMMU VS. ACIT 2 PAYING TAX AS WELL AS INTEREST PAID THEREON FOR THA T YEAR, FOR WHICH HE WOULD TAKE US THROUGH THE PAPER-BOOK FILED IN STAY APPLICATION NO . 12/ASR/2018, BEING IN RESPECT OF THE PENALTY LEVIED U/S. 271AAB FOR THAT YEAR. TH E ASSESSING OFFICER (AO), HOWEVER, WHILE PERUSING THE DOCUMENTS FOUND DURING THE SEARCH, WAS OF THE VIEW THAT INCOME, WHICH HE ESTIMATED AT RS. 160 LACS, WA S ASSESSABLE FOR A.Y. 2013-14, RESULTING IN THE IMPUGNED DEMAND (RS. 72.17 LACS), REJECTING THE ASSESSEES WORKING, BASED ON THE SAME DOCUMENT/S, EXHIBITING, ON THE CONTRARY, A LOSS. THE ASSESSEES ALTERNATE CONTENTION WAS THAT, EVEN ASSU MING INCOME, TO WHATEVER EXTENT, ASSESSABLE FOR THE CURRENT YEAR, INCOME TO THAT EXTENT OUGHT TO BE REDUCED FROM THE INCOME ASSESSABLE IN THE ASSESSEES HANDS FOR A.Y.2014-15. THIS IS AS THE TOTAL INCOME ON THE BASIS OF THE DOCUMENT/S STANDS ALREADY ACCEPTED BY THE REVENUE, ALBEIT FOR A.Y. 2014-15. THE SAME, HOWEVER , DID NOT FIND FAVOUR WITH THE REVENUE, EVEN AS NO DEFECT IN THE ASSESSEES WORKIN G, SHOWING A LOSS, STANDS POINTED OUT BY THE REVENUE. THE ASSESSEE HAS ALREAD Y PAID 20% OF THE IMPUGNED DEMAND, AND IS HARD PUT TO PAY THE BALANCE AMOUNT, SO THAT THE SAME BE STAYED IN VIEW OF THE ASSESSEES HAVING A STRONG, PRIMA FACIE , CASE. THE LD. CIT-DR WOULD, ON THE OTHER HAND, CONTEND T HAT AN INCOME DISCLOSURE U/S. 132(4) BY THE ASSESSEE DOES NOT BIND THE REVEN UE, WHICH IS AT LIBERTY TO ASCERTAIN THE ASSESSEES TAXABLE INCOME UNDER THE A CT FOR EACH YEAR, FOR WHICH THE APPROPRIATE STAGE IS THE ASSESSMENT STAGE. INCOME H AS TO BE ASSESSED IN THE HANDS OF THE RIGHT PERSON AND FOR THE RIGHT YEAR. THE STAY O F DEMAND COULD IN ANY CASE BE ENTERTAINED UPON PAYMENT OF 50% OF THE OUTSTANDING DEMAND. 3. WE HAVE HEARD THE PARTIES. EXPRESSING A VIEW ON THE MERITS OF THE RESPECTIVE C ASES WOULD REQUIRE EXAMINING THE RELEVANT MATERIAL, INCLUDING THE IMPU GNED ORDERS, AS WELL AS HEARING THE PARTIES THEREON, AT LEAST ON A PRELIMINARY BASI S. GOING BY THE ASSESSEES S.A. NO.11(ASR)/2018 (ARISING OUT OF I TA NO.408(ASR)/2018. A.Y.2013-14) RAVINDER AGGARWAL, JAMMU VS. ACIT 3 ALTERNATE ARGUMENT, THE INCOME, IRRESPECTIVE OF ITS QUANTUM, BEING ASSESSABLE FOR A.Y.2013-14, IT IS ITS ASSESSMENT FOR A.Y.2014-15 THAT, RATHER, COULD NOT BE, AND LIABLE TO BE ASSAILED INSTEAD. WHAT, HOWEVER, APPEA LS FROM THE STAND-POINT OF THE INSTANT PROCEEDINGS, WHEREAT WE ARE MORE CONCERNED WITH, APART FROM THE DISPUTE ON MERITS, BALANCING THE CONCERNS OF THE OPPOSING S IDES, IS THAT TAX ON THE INCOME, PRIMA FACIE ASSESSABLE ON THE BASIS OF THE DOCUMENTS, STANDS A DMITTEDLY RETURNED BY THE ASSESSEE FOR A.Y.2014-15, PAYING TAX AND INTERE ST THEREON, I.E., THE TWO COMPONENTS OF THE DEMAND. THE TAX RATE FOR BOTH THE YEARS IS THE SAME. THAT BEING THE CASE, IN OUR VIEW, IT WOULD BE JUSTIFIED TO GRA NT STAY OF THE IMPUGNED DEMAND, SUBJECT TO THE PAYMENT OF 25% THEREOF BY 15.9.2018 , OF COURSE ADJUSTING THAT ALREADY PAID, FOR A PERIOD OF SIX MONTHS OR THE DAT E OF DISPOSAL OF THE ASSESSEES APPEAL BEFORE THIS TRIBUNAL, WHICHEVER IS EARLIER. NEEDLESS TO ADD, SEEKING OF ADJOURNMENT OR NON-REPRESENTATION ON THE DATE OF HE ARING WITHOUT JUSTIFIABLE CAUSE SHALL OPERATE TO VACATE THE STAY. THE HEARING OF TH E ASSESSEES APPEAL IS FIXED FOR 22/10/2018 , FOR WHICH, BEING HEREBY COMMUNICATED, NO SEPARATE NOTICES OF HEARING SHALL BE SENT. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES STAY PETITION IS A LLOWED ON THE FOREGOING TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 24.08.2018 SD/- SD/- (N.K.CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNT ANT MEMBER DATED: 24 .08.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. RAVINDER AGGARWAL, S/O SH. ROSHAN LAL, R/O 116, JULLAKHA MOHALLA, JAIN BAZAR, JAMMU (2) THE ACIT, CENTRAL CIRCLE, JAMMU (3) THE CIT(A)-5, LUDHIANA (4) THE CIT CONCERNED. (5) THE SR DR, I.T.A.T., S.A. NO.11(ASR)/2018 (ARISING OUT OF I TA NO.408(ASR)/2018. A.Y.2013-14) RAVINDER AGGARWAL, JAMMU VS. ACIT 4 TRUE COPY BY ORDER