SHRI AJAY WAHI , JAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, JAIPUR

SA 11/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3642 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDRA MEHTA CIT DHK
• Assessee Lawyers: DILIP SHIVPURI
• Keywords: Application of stay; Reasonable cause
• Section: 143(3); 147

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM STAY APPLICATION NO. 11/JP/2018 (ARISING OUT OF ITA NO. 336/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 DR. AJAY WAHI, DR. WAHIS DIAGNOSTIC CLINIC, A-5 , CHANPLOLE, JHOTWARA ROAD, JAIPUR CUKE VS. ACIT, CIRCLE-01, JAIPUR LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN NO. AABPW0826F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI DILIP SHIVPURI (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDRA MEHTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/03/2018 ?KKS 'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 23/03/2017 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT STAY APPLICATION FILED BY THE ASSESSEE IS IN RESPECT OF DEMAND OF RS. 44,56,670/- RAISED BY THE ASSESSING OFFICER PURSUANT TO ORDER U/S 147 READ WITH 143(3) DATED 29.12.2016. AFTER TAKING INTO CONSIDERATION THE RELIEF GRANTED BY THE CIT(A), THE DEMAND PRESENTLY STAND REDUCED TO RS. 22,27,050/-. THE ASSESSEE HAS SUBMITTED THAT AGAINST THE SAID DEMAND, IT HAS ALREADY PAID RS. 6,70,000/- ON 21.02.2017 WHICH CONSTITUTES 30% OF THE OUTSTANDING DEMAND AND FOR THE STAY OF THE BALANCE DEMAND TILL DISPOSAL OF THE APPEAL FILED BEFORE THE TRIBUNAL, PRESENT STAY APPLICATION HAS BEEN MOVED BEFORE US. 2. THE LD. AR HAS DRAWN REFERENCE TO THE CBDT INSTRUCTION NO. 96 DATED 21.08.1969 WHEREIN IT IS STATED THAT THE ABSOLUTE STAY OF DEMAND TO BE GIVEN WHERE THE ASSESSED INCOME IS TWICE OR MORE THAN THE RETURNED INCOME. IT WAS SUBMITTED THAT THE HONBLE DELHI HIGH COURT IN CASE OF SOUL VS. DY. CIT [2008] 323 ITR 305 (DELHI) HAS HELD THAT INSTRUCTION NO. 1916 DATED 02.12.1993 DOES NOT SUPERSEDE 2 S.A NO. 11/JP/2018 DR. AJAY WAHI VS. ACIT, JAIPUR INSTRUCTION NO. 96 OF 1969 WHEN IT WAS A CASE HIGH PITCHED ASSESSMENT. IT WAS FURTHER SUBMITTED THAT HONBLE RAJASTHAN HIGH COURT IN CASE OF MAHARANA SHRI BHAGWAT SINGHI OF MEWAR V. ITAT REPORTED IN 223 ITR 192 HAS HELD THAT IN VIEW OF THE INSTRUCTION NO. 96 OF 1969, RECOVERY OF ENTIRE TAX DEMAND BE STAYED TILL DISPOSAL OF APPEAL BY THE ITAT. IT WAS FURTHER SUBMITTED THAT THE LATEST O. M F. NO. 404/72/93-ITCC DATED 29.02.2016 ISSUED BY CBDT ALSO NOWHERE SUPERSEDE INSTRUCTION NO. 96 OF 1969 WHEN IT COMES TO HIGH PITCHED ASSESSMENT. IT WAS SUBMITTED THAT IN THE PRESENT CASE, THE RETURNED INCOME OF RS. 3,33,530/- WAS ENHANCED TO RS. 1,05,12,710/- WHICH IS MORE THAN 30% OF THE RETURNED INCOME AND IT IS CLEARLY A CASE OF HIGH PITCHED ASSESSMENT WHICH CALLS FOR A COMPLETE STAY ON THE OUTSTANDING TAX DEMAND. IT WAS FURTHER SUBMITTED THAT ONE OF THE ASSESSEES BANK ACCOUNT HAS ALREADY BEEN ATTACHED BY THE DEPARTMENT AND THE ASSESSING OFFICER IS PRESSING FOR RECOVERY OF THE BALANCE DEMAND. ON MERITS, IT WAS SUBMITTED THAT THE ASSESSEE HAS A STRONG CASE AS THE ORDER OF THE LD CIT(A) IS ERRONEOUS ON FACTS AND IN LAW. IT WAS SUBMITTED THAT THE ASSESSEE WAS NOT THE OWNER OF THE LAND AND WAS A MERELY A POWER OF ATTORNEY HOLDER OF CERTAIN OTHER IDENTIFIABLE PERSONS ON WHOSE BEHALF THE LAND WAS SOLD AND THE SALE CONSIDERATION SO RECEIVED IN HIS BANK ACCOUNT IS CLEARLY IDENTIFIABLE AND THE SAME HAS BEEN RETURNED TO ACTUAL LAND OWNERS. IT WAS SUBMITTED THAT THE LD CIT(A) HAS ONLY GIVEN PART RELIEF AND THE BALANCE DEMAND HAS BEEN CONFIRMED WHICH THE ASSESSEE FEELS IS NOT JUSTIFIED. IT WAS SUBMITTED THAT THE ASSESSEE SHALL BE ABLE TO DEMONSTRATE THE SAME DURING THE COURSE OF MAIN APPEAL. IT WAS ACCORDINGLY SUBMITTED THAT THE BALANCE OUTSTANDING DEMAND OF RS. 22,26,050/- MAY BE STATED TILL DISPOSAL OF THE APPEAL BY THE TRIBUNAL WHICH IS ALREADY FIXED FOR HEARING ON 15.05.2018. 3. THE LD. DR IS HEARD WHO OPPOSED STAY APPLICATION AND SUBMITTED THAT HE HAS NO OBJECTION WHERE THE MATTER IS HEARD ON PRIORITY BASIS. HOWEVER, THE ASSESSEE MAY BE ASKED TO DEPOSIT CERTAIN ADDITIONAL AMOUNT GIVEN THE PRESSURE OF TAX RECOVERY ON THE DEPARTMENT. 4. AFTER HEARING BOTH THE PARTIES AND PERUSAL OF THE MATERIAL ON RECORD, WE FIND THAT AGAINST THE OUTSTANDING DEMAND OF RS. 22,26,050/-, THE ASSESSEE HAS ALREADY DEPOSITED 30% OF THE TAX DEMAND. FURTHER, WHERE THE ASSESSEE IS MERELY A POWER OF 3 S.A NO. 11/JP/2018 DR. AJAY WAHI VS. ACIT, JAIPUR ATTORNEY HOLDER AND HAS SOLD LAND ON BEHALF OF THE OTHER PERSONS, WHERE IT CAN BE DEMONSTRATED THAT THE SALE CONSIDERATION SO RECEIVED BY THE ASSESSEE IS REFUNDED TO THE RESPECTIVE ACTUAL OWNERS OF LAND AND THE LATTER HAS OFFERED THE SAME IN THEIR RESPECTIVE HANDS, THE ASSESSEE SEEMS TO HAVE A PRIMA FACIE CASE. HOWEVER, THE ISSUE HAS TO BE DEALT WITH IN DETAIL WHILE DEALING WITH THE APPEAL OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE BALANCE DEMAND OF RS. 22,26,050/-IS STAYED FOR A PERIOD OF 180 DAYS TILL DISPOSAL OF THE APPEAL WHICHEVER IS EARLIER. THE HEARING IN THE MATTER IS PREPONED FROM 15.05.2018 TO 18.04.2018. THE VIEW EXPRESSED IN THIS ORDER SHALL HAVE NO BEARING ON THE MERITS OF THE APPEAL. THE DATE OF HEARING IS PRONOUNCED IN THE OPEN COURT AND BOTH THE PARTIES HAVE NOTED THE SAME. SEPARATE NOTICE IS DISPENSED WITH. THE LD AR HAS GIVEN AN UNDERTAKING THAT IT SHALL NOT SEEK ANY UNNECESSARY ADJOURNMENT IN THE MATTER WITHOUT SHOWING REASONABLE CAUSE TO THE SATISFACTION OF THE BENCH. IN CASE THE ASSESSEE SEEKS ADJOURNMENT OF HEARING WITHOUT REASONABLE CAUSE, THE STAY GRANTED SHALL STAND VACATED. THE STAY PETITION OF THE ASSESSE IS DISPOSED OFF WITH ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 23/03/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 23/03/2018. GANESH KR. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- DR. AJAY WAHI, JAIPUR 2. THE RESPONDENT ACIT, CIRCLE-01, JAIPUR 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 4 S.A NO. 11/JP/2018 DR. AJAY WAHI VS. ACIT, JAIPUR 6. GUARD FILE ( S.A NO. 11/JP/2018 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR