Shri Nishant Kantilal Patel, Bharuch V. Income tax Officer, Ward-2(2), Bharuch

SA 11/SRT/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8873 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 07-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B P K
• Assessee Lawyers: RASESH SHAH
• Keywords: Application of stay; Extension of stay
• Section: 147

Judgement Text

PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O. P. MEENA, ACCOUNTANT MEMBER STAY PETITION NO. 10 &11/SRT/2019/ ARISING OUT OF I.T.A. NO.05 &10/SRT/2019: ASSESSMENT YEAR: 2013-14& 2014-15 SHRI NISHANT KANTILAL PATEL, 9 UMA PARK SOCIETY, PATEL KUNJ, GIDC, ANKELESHWAR 393002 PAN:AMEPP 2505 R VS. INCOME TAX OFFICER, WARD- 2(3) BHARUCH APPELLANT RESPONDENT ASSESSEE BY SHRI RASESH SHAH, CA REVENUE BY SHRI B. P. K. PANDA, SR. D.R. DATE OF HEARING 21.02.2019 DATE OF PRONOUNCEMENT 21.02.2019 ORDER PER O. P. MEENA, AM 1. BY WAY OF THESE TWO STAY APPLICATIONS, THE APPLICANTS ASSESSEE SEEKS AN EXTENSION OF STAY ON COLLECTION/RECOVERY OF OUTSTANDING DEMAND OF RS.8,39,560 FOR THE ASSESSMENT YEAR 2013-14 AND RS. 13,64,060 FOR THE ASSESSMENT YEAR 2014-15 IN THE MATTER OF ASSESSMENT FINALISED U/S.143(3) READ WITH SECTION 147 OF THE ACT. 2. BRIEFLY STATED, THE RELEVANT MATERIAL FACTS, AS REQUIRED TO BE CONSIDERED AT THIS STAGE OF HEARING STAY PETITION ARE THAT THE ASSESSEE IS AN INDIVIDUAL, WHOSE ASSESSMENT WAS MADE UNDER SECTION 143 (3) READ WITH SECTION 147 BY MAKING ADDITION OF RS. 20,76,924 AND RS. 33,11,424 ON ACCOUNT OF LONG-TERM CAPITAL GAIN AND RS. 1,03,846 AND RS. 3,27,336 ON ACCOUNT OF COMMISSION EXPENSES. THE DEMAND OF RS. 10,50,820 WAS RAISED FOR THE ASSESSMENT YEAR 2013-14 AS AGAINST WHICH THE ASSESSEE HAS PAID DEMAND OF RS. 2,11,260 WHICH COMES TO APPROXIMATELY 20% OF THE TOTAL DEMAND FOR THE ASSESSMENT YEAR 2013-14. PAGE 2 OF 3 SIMILARLY DEMAND OF RS. TOTAL DEMAND OF RS. 16,10,080 WAS RAISED FOR THE ASSESSMENT YEAR 2014-15 AGAINST WHICH THE ASSESSEE HAS PAID DEMAND OF RS. 2,46,020 WHICH COMES TO APPROXIMATELY 15% OF TOTAL DEMAND. THE ASSESSEE HAS FILED APPEAL BEFORE TRIBUNAL WHICH IS PENDING. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE UNDER DISPUTE ON WHICH THE ASSESSEE IS LIKELY TO SUCCEED IN APPEAL ON LEGAL AS WELL AS ON FACTUAL GROUNDS. THE STAY PETITION OF THE ASSESSEE FILED BEFORE PR. CIT VADODARA DTD. 07.01.2019 IS PENDING. 4. THE LD. DR VEHEMENTLY OPPOSED THE STAY PETITION. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES. WE ARE REFRAINING TO EXPRESS OUR OPINION, AT THIS STAGE, ON THE RIVAL CONTENTIONS ON MERITS OR EVEN ON FACTUAL ASPECTS AS DISCERNIBLE, FROM THE MATERIAL FROM RECORDS. WE MAKE IT CLEAR THAT NONE OF OUR OBSERVATION MADE BY US WILL HAVE ANY INFLUENCE ON MERITS OF THE CASE AS THE OBSERVATION ARE BASED ON LIMITED ARGUMENTS BEFORE US AND ARE THEREFORE, TENTATIVE IN NATURE. COMING TO OUR VIEW SO FAR AS PRIMA-FACIE MERITS OF THE APPEAL ABOUT WHICH WE MUST BE SATISFIED BEFORE GRANTING A STAY ON RELATED DEMAND IMPUGNED BEFORE US, ARE CONCERNED, SUFFICE TO SAY THAT, ON THE FACE OF IT, THE BEFORE US DOES NOT APPEARS TO BE FRIVOLOUS APPEAL. THE ASSESSED INCOME IN THIS CASE IS MORE THAN 10 TIMES OF THE RETURNED INCOME, AND THE ADDITION ARE IN RESPECT OF CONTENTIOUS ISSUES. IN OUR CONSIDERED VIEW, AND ON PERUSAL OF MATERIAL ON RECORD AND ON CONSIDERATION OF RIVAL CONTENTIONS, THE BALANCE OF CONVENIENCE IS IN FAVOUR OF THE PARTIALLY STAY ON COLLECTION/RECOVERY OF DISPUTED DEMANDS. WE, THEREFORE, DEEM AND FIT IT PROPER TO GRANT A STAY ON COLLECTION/RECOVERY OF DISPUTED DEMANDS, FOR A PERIOD OF SIX MONTHS FROM THE DATE OF THIS ORDER, TILL THE PRONOUNCEMENT OF THE ORDER ON RELATED APPEAL OR TILL FURTHER ORDERS, PAGE 3 OF 3 WHICHEVER IS EARLIER, ON THE CONDITION THAT THE ASSESSEE WILL DEPOSIT RS. 1.50 LAKH EACH FOR BOTH ASSESSMENT YEAR UNDER CONSIDERATION, WITHIN TWO WEEKS FROM THE DATE OF THIS ORDER AND THE ASSESSEE AND REVENUE WILL FULLY CO-OPERATE IN EXPEDITIOUS DISPOSAL OF THE APPEAL AND NOT SEEK ANY ADJOURNMENT ON ANY GROUNDS WHATSOEVER, OTHER THAN THE GROUND ON WHICH THE BENCH IS SATISFIED ABOUT GROUNDS BEING WHOLLY UNAVOIDABLE AND BONAFIDE. IN THE EVENT OF ADJOURNMENTS, CONTRARY TO THESE DIRECTIONS, BEING SOUGHT BY THE ASSESSEE, THE STAY ON COLLECTION OF DEMAND AS ALSO TO OUT OF TURN OF HEARING THIS APPEAL, SHALL STAND VACATED FORTHWITH IN THE CASE OF ANY ADJOURNMENT SOUGHT BY THE REVENUE, WHICH IN THE OPINION OF BENCH IS NOT WHOLLY UNAVOIDABLE OR BONAFIDE, THE ASSESSEE WILL NOT REQUIRED TO PAY INSTALLMENTS OF REMAINING OUTSTANDING DEMAND IF ANY, IF THE BENCH DEEMED IT FIT. 6. AS A COROLLARY TO THE STAY BEING GRANTED, THE APPEAL IS ALSO GRANTED OUT OF TURN HEARING; SUBJECT TO COMPLIANCE OF TERMS OF STAY AS ABOVE. THE PARTIES WAIVE NOTICE OF HEARING, AND THE DATE OF HEARING OF APPEAL IS PRONOUNCED AT THE TIME OF HEARING OF THIS MISCELLANEOUS PETITION ITSELF, IN THE OPEN COURT FOR 04.04.2019. THE PARTIES WILL FILE REQUISITE DOCUMENTS SUCH AS PAPER BOOK IN ADVANCE. 7. IN THE RESULT, THE STAY PETITION IS ALLOWED IN THE TERMS INDICATED ABOVE 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.02.2019 SD/- SD/- (KUL BHARAT) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT: DATED: 21 ST FEBRUARY, 2019/OPM COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT