Siddhartha Academy of General & Technical Education, , Vijayawada V. The Assistant Commissioner of Income Tax, Central Circle, Vijayawada

SA 12/VIZ/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3973 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 19-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SONOWAL
• Assessee Lawyers: B KAUSHALENDRA RAO
• Keywords: Application of stay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER S .A .NO. 1 2 /VIZ/201 8 (ARISING OUT OF I.T.A.NO. 1 23 /VIZ/201 8 ) ( / ASSESSMENT YEAR: 20 1 4 - 1 5 ) SIDDHARTHA ACADEMY OF GENERAL & TECHNICAL EDUCATION PLOT NO.1, SIDDHARTHA NAGAR VIJAYAWADA [PAN : AA BTS1271J ] VS. ACIT, CENTRAL CIRCLE VIJAYAWADA ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI B.KAUSHALENDRA RAO, AR / RESPONDENT BY : SHRI D.K.SONOWAL , DR / DATE OF HEARING : 07 . 0 9 . 2018 / DATE OF PRONOUNCEMENT : 0 7 .0 9 .2018 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS STAY APPLICATION IS FILED BY THE ASSESSEE ON 19.04.2018 REQUESTING FOR STAY OF DEMAND. THE ISSUED INVOLVED IN THIS CASE IS LEVY OF PENALTY U/S 271AAB OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS ACT). 2 S .A NO . 1 2 /VIZ/201 8 SIDDHARTHA ACADEMY OF GENERAL & TECHNICAL EDUCATION, VIJAYAWADA 2. DURING THE HEARING, THE LD.AR SUBMITTED THAT THE AO LEVIED PENALTY OF RS.2 ,49,79,920/ - AND THE ASSESSEE HAS ALREADY PAID THE DEMAND OF RS.1,32,86,362/ - AND THE BALANCE OUTSTANDING WAS RS.1,16,93,558/ - AND ARGUED THAT MORE THAN 50% OF THE DEMAND WAS ALREADY PAID BY THE ASSESSEE. THE LD.AR FURTHER SUBMITTED THAT THE PENALTY WAS L EVIED U/S 271AAB OF THE ACT AND THE ISSUE INVOLVED FOR LEVYING THE PENALTY DOES NOT FIT INTO THE DEFINITION OF UNDISCLOSED INCOME AS ENVISAGED IN SECTION 271AAB OF THE ACT, THEREFORE, ARGUED THAT THE ASSESSEE IS HAVING A CASE ON MERITS FOR GETTING THE RELI EF AND SUBMITTED THAT THE ASSESSEE IS AN EDUCATIONAL INSTITUTION WHICH INCURS EXPENDITURE ON DAY TO DAY BASIS AND THE PAYMENT OF OUTSTANDING DEMAND WOULD PUT INTO FINANCIAL HARDSHIP TO THE INSTITUTION TO MEET THE FINANCIAL REQUIREMENTS, HENCE, REQUESTED TO STAY THE DEMAND TILL DISPOSAL OF APPEAL. 3. ON THE OTHER HAND, THE LD.DR STRONGLY OPPOSED FOR GRANTING THE STAY. THE LD.DR ARGUED THAT THE DEPARTMENT IS HAVING FAIR CHANCES IN SUCCEEDING THE APPEAL AND THE ASSESSEE LOST THE APPEAL BEFORE THE FIRST APPEL LATE AUTHORITY AND REQUESTED TO REJECT THE STAY PETITION FILED BY THE ASSESSEE. 3 S .A NO . 1 2 /VIZ/201 8 SIDDHARTHA ACADEMY OF GENERAL & TECHNICAL EDUCATION, VIJAYAWADA 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE, THE AO HAS RAISED A DEMAND OF RS.2,49,79,920/ - AND THE ASSESSEE HAS ALREADY PAID THE DEMAND OF RS.1,32,86,362/ - AND THE REMAINING BALANCE WAS ONLY RS.1,16,93,558/ - . THE ASSESSEE HAS PAID MORE THAN 50% OF THE DEMAND. THE ASSESSEE IS AN EDUCATIONAL INSTITUTION AND INCURS LOT OF EXPENDITURE FOR RUNNING THE INSTITUTION. AFTER GOING THR OUGH THE SUBMISSIONS MADE BY BOTH THE PARTIES AND FACTS AND MERITS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT IN THE INTEREST OF JUSTICE, THE OUTSTANDING DEMAND REQUIRED TO BE STAYED. ACCORDINGLY, THE OUTSTANDING DEMAND OF RS.1,16,93,558/ - IS KEPT IN ABEYANCE FOR 180 DAYS FROM THE DATE OF THIS ORDER WITH A DIRECTION TO THE ASSESSEE NOT TO SEEK ADJOURNMENT AS AND WHEN THE CASE IS FIXED FOR HEARING. IN CASE THE ASSESSEE SEEKS ADJOURNMENT, THE STAY GRANTED TO THE ASSESSEE WOULD STANDS CANCELLED AUTOMATI CALLY AND THE REVENUE IS FREE TO COLLECT THE DEMAND AS PER LAW. ACCORDINGLY THE STAY APPLICATION FILED BY THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, STAY APPLICATION OF THE ASSESSEE IS ALLOWED. 4 S .A NO . 1 2 /VIZ/201 8 SIDDHARTHA ACADEMY OF GENERAL & TECHNICAL EDUCATION, VIJAYAWADA THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 7 TH SEP, 201 8 . S D/ - S D/ - ( . ) ( . . ) ( V. DURGA RAO) ( D.S. SUNDER SINGH) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / VISAKHAPATNAM /DATED : 0 7 .09.2018 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1 . / THE ASSESSEE - SIDDHARTHA ACADEMY OF GENERAL & TECHNICAL EDUCATION , PLOT NO.1, SIDDHARTHA NAGAR , VIJAYAWADA 2 . / THE REVENUE - ACIT, CENTRAL CIRCLE - 2, VI JAYAWADA 3 . THE PR. COMMISSIONER OF INCOME TAX (CENTRAL), VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME TAX(APPEALS) - 12 , HYDERABAD 5 . , , / DR, ITAT, VISAKHAPATNAM 6. / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM