M/s EMC Software and Services India Private Limited , Bangalore V. Joint Commissioner of Income Tax Special Range-2 , Bangalore

SA 16/BANG/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6147 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 16-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR PRA DEEP KUMAR
• Keywords: TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER S.P. NO. & ITA NO. PETITIONER RESPONDENT 16/BANG/2019 (IN IT(TP) A NO.3375/BANG/2018) (A.Y. 2014 - 15) M/S. EMC SOFTWARE AND SERVICES INDIA PVT. LTD., BAGMANE DEVELOPERS PRIVATE LTD. SEZ, MARATHAHALLI RING ROAD, DODDANEKKUNDI VILLAGE, BANGALORE 560037. PAN : A A B C T0199B THE JCIT SPECIAL RANGE - 2 BANGALORE. ASSESSEE BY : SHRI SHARATH RAO, C. A. REVENUE BY : DR. PRADEEP KUMAR , ADDL. CIT DR DATE OF HEARING :25.01.2019. DATE OF PRONOUNCEMENT :25.01.2019. O R DE R PER SHRI A. K. GARODIA, A.M. : THE ASSESSEE HAS FILED THIS STAY PETITION SEEKING S TAY OF DISPUTED OUTSTANDING DEMAND OF RS. 116,11,25,130/- FOR A. Y. 2014 15 . 2. IN COURSE OF HEARING OF THIS STAY PETITION, IT W AS SUBMITTED BY THE LEARNED AR OF THE ASSESSEE THAT THE AO IN COMPUTING THE DEMAND H AS CONSIDERED TDS OF RS. 669,320/- ONLY BUT THE CORRECT FIGURE IS RS. 770,30 1/-. HE FURTHER SUBMITTED THAT THE AO HAS CONSIDERED THE MAT CREDIT AT NIL AS AGAINST THE AMOUNT OF MAT CREDIT AVAILABLE AS PER THE ASSESSEE OF RS. 21,44,83,587/- . THEREAFTER, HE SUBMITTED THAT THE AO HAS CONSIDERED THE ADVANCE TAX PAYMENT MADE BY THE ASSESSEE AT RS. 7 CRORES ONLY AS AGAINST THE AMOUNT OF ADVANCE TAX PA ID BY THE ASSESSEE AS PER THE ASSESSEE OF RS. 28,74,70,100/-. HE SUBMITTED THAT T HE ASSESSEE HAS ALREADY MADE A RECTIFICATION PETITION TO THE AO FOR THESE INACCURA CIES AND THE SAME IS PENDING. HE POINTED OUT THAT ONCE THESE ARE RECTIFIED, THE AMOU NT OF NET TAX DEMAND WILL COME DOWN TO RS. 31,11,94,728/- AS AGAINST THE TAX DEMAN D RAISED BY THE AO OF RS. 74,32,49,396/-. HE FURTHER SUBMITTED THAT INTEREST DEMAND WILL ALSO BE SUBSTANTIALLY REDUCED BECAUSE OF THESE CORRECTIONS. HE SUBMITTED A WORKING AND POINTED OUT THAT NET DEMAND AFTER THESE CORRECTIONS INCLUDING INTERE ST WILL BE ONLY OF RS. 2 S.P. NO.16/BANG/2019 (IN IT(TP)A NO. 3375/BANG/2018) 48,21,03,060/-.HE SUBMITTED THAT THE ASSESSEE IS RE ADY TO MAKE PAYMENT OF RS. 21 CRORES IN THREE INSTALLMENTS AND SUBJECT TO THIS CO NDITION, STAY SHOULD BE GRANTED. HE POINTED OUT THAT AT PRESENT THE APPEAL IS FIXED FOR HEARING ON 26.06.2019 BUT THE SAME MAY BE PREPONED. LEARNED DR OPPOSED GRANTING O F STAY. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND IN VIEW OF THE FACTS DISCUSSED ABOVE, IT IS SEEN THAT THE AS PER THE WORKING OF TH E ASSESSEE IN RESPECT OF DEMAND POSITION AFTER RECTIFICATION PENDING BEFORE THE AO, THE DEMAND INCLUDING INTEREST WILL GO DOWN TO RS. 48,21,03,060/-. WE HAVE NOT CHECKED THE ACCURACIES OF THIS CALCULATION BY THE ASSESSEE AND WE DO NOT COMMENT A BOUT THE ALLOWABILITY OF VARIOUS RECTIFICATION POINTED OUT BY THE ASSESSEE ON PAGES 168 & 178 OF THE STAY PETITION BUT THE LEARNED DR OF THE REVENUE HAS ALSO NOT POINTED OUT ANY INACCURACY IN THE SAME. HENCE, WE FEEL THAT IN THE FACTS OF THE PRESENT CAS E, IT IS A FIT CASE TO GRANT STAY SUBJECT TO THIS CONDITION THAT THE ASSESSEE WILL MA KE PAYMENT OF RS. 21 CRORES PAYABLE IN THREE EQUAL INSTALLMENTS OF RS. 7 CRORES EACH PAYABLE ON 5 TH FEBRUARY, 2019, 22 ND FEBRUARY 2019 AND 15 TH MARCH, 2019. SUBJECT TO THIS CONDITION, WE GRANT STAY FOR SIX MONTHS OR DISPOSAL OF THE APPEAL WHICH EVER IS EARLIER. THE HEARING OF THE APPEAL IS PREPONED TO 18.03.2019 AND SINCE THIS DAT E OF HEARING IS PRONOUNCED IN OPEN COURT, NO NOTICE OF HEARING IS REQUIRED TO BE ISSUED. WE ALSO MAKE IT CLEAR THAT THE ASSESSEE SHOULD NOT SEEK ADJOURNMENT IN CO URSE OF HEARING OF THIS APPEAL WITHOUT JUSTIFIABLE REASONS AND IF THE ASSESSEE DOE S SO, THE STAY GRANTED AS PER THIS ORDER SHALL STAND VACATED AUTOMATICALLY. 4. IN THE RESULT, THE STAY PETITION FILED BY THE AS SESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ON CONCLUSION OF THE HEARING. SD/- SD/- (LALIET KUMAR) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED: 25.01.2019. MS* 3 S.P. NO.16/BANG/2019 (IN IT(TP)A NO. 3375/BANG/2018) COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.