M/s Jyoti Ltd, Jammu & Kashmir V. The Dy. Commissioner of Income-tax, Srinagar

SA 17/ASR/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3245 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 20-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 01-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARSEM LAL DR S A NOS TO ASR
• Keywords: Business income; Application of stay; Reasonable cause
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S. KAPOOR, HONBLE ACCOUNTANT MEMBER S.A. NO. 15 (ASR)/2015 ARISING OUT OF ITA NO.323(ASR)/2015 ASSESSMENT YEAR: 2006-07 PAN: AAABCJ5887G M/S JYOTI LIMITED GULAB BHAWAN PALACE, GUPKAR RAOD, SRINAGAR, JAMMU & KASHMIR- 110001 VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-III, SRINAGAR. (APPELLANT) (RESPONDENT) S.A. NOS. 16 (ASR)/2015 ARISING OUT OF ITA NO. 369(ASR)/2015 ASSESSMENT YEAR: 2007-08 S.A. NO. 17 (ASR)/2015 ARISING OUT OF ITA NO. 370(ASR)/2015 ASSESSMENT YEAR: 2009-10 S.A. NO. 18 (ASR)/2015 ARISING OUT OF ITA NO.371(ASR)/2015 ASSESSMENT YEAR: 2010-11 S.A. NO. 19 (ASR)/2015 ARISING OUT OF ITA NO.372(ASR)/2015 ASSESSMENT YEAR: 2011-12 S.A. NO. 20 (ASR)/2015 ARISING OUT OF ITA NO.373(ASR)/2015 ASSESSMENT YEAR: 2012-13 PAN: AAABCJ5887G M/S JYOTI LIMITED GULAB BHAWAN PALACE, GUPKAR RAOD, SRINAGAR, JAMMU & KASHMIR VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-III, SRINAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. AJAY VOHRA, (SR. ADV.) SH. GAURAV JA IN,( ADV.) RESPONDENT BY: SH. TARSEM LAL (DR) 2. S.A NOS. 15 TO 20(ASR)/2015 DATE OF HEARING: 06.10.2015 DATE OF PRONOUNCE MENT: 27.10.2015 ORDER PER T. S. KAPOOR (AM): THESE ARE STAY APPLICATIONS FILED BY THE ASSESS EE AGAINST STAY OF TOTAL DEMAND OF RS.1,71,39,848/- WHICH INCLUDES INTEREST ON RS.91,60,795/-. THE DEMAND OF TAX HAS ARISEN ON ACCOUNT OF COMMON FACTO R IN ALL THESE YEARS WHICH BEING THAT THE ASSESSING OFFICER HAD TREATED THE INCOME DECLARED BY ASSESSEE AS BUSINESS INCOME AS INCOME FROM HOUSE PR OPERTY AND HAD ENHANCED THE ANNUAL RENTAL VALUE. 2. AT THE OUTSET, THE LEARNED SENIOR COUNSEL SUBMIT TED THAT THE ADDITIONS IN ALL THESE YEARS EXCEPT IN ASST. YEAR 2012-13 HAVE B EEN MADE BY REOPENING THE CASES UNDER SECTION 148 OF THE ACT. HE SUBMITTED TH AT THE INCOME OF THE ASSESSEE FROM 1997-98 ONWARDS WAS BEING ASSESSED AS INCOME FROM BUSINESS AND IT WAS ONLY IN ASST. YEAR 2008-09 THAT ASSESSIN G OFFICER ASKED THE ASSESSEE AS TO WHY THE INCOME BE NOT ASSESSED AS INCOME FROM HOUSE PROPERTY AND ASSESSEE AGREED TO THAT. IN VIEW OF THE ASSESSMENT IN ASST. YEAR 2008-09, THE CASES FOR ASST. YEARS 2006-07 TO 2011-12 WERE REOPE NED AND ADDITIONS WERE MADE UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND ENHANCED ANNUAL RENTAL VALUE WAS TAKEN INSTEAD OF INCOME DECLARED B Y ASSESSEE. EXPLAINING THE FACTS OF THE CASE THE LEARNED SENIOR COUNSEL SUBMIT TED THAT THE ASSESSEE HAD TAKEN LAND MEASURING 222 KANAL AND 19 MARLAS ALONG WITH STRUCTURES KNOWN AS GULAB BHAWAN PALACE ON LEASE VIDE PERPETUAL LEAS E DEED DATED 22.11.1997 FOR A PERIOD OF 99 YEARS AT AN ANNUAL RENT OF RS.12 ,000/- FROM SHRI VIKRAMADITYA SINGH. THEREAFTER, THE APPELLANT COMPA NY ENTERED INTO A LEASE 3. S.A NOS. 15 TO 20(ASR)/2015 AGREEMENT FOR A PERIOD OF 99 YEARS WITH M/S BHARAT HOTELS LTD. (BHL) WHEREUNDER THE LATTER WAS GIVEN A RIGHT TO USE, UPG RADE, RENOVATE AND RECONSTRUCT THE SAID BUILDING KNOWN AS GULAB BHAWAN PALACE AND OTHER ADJOINING STRUCTURES FOR THE PURPOSES OF COMMISSION ING A 5 STAR HOTEL AT AN ANNUAL LICENSE FEE OF RS.5 LACS. 3. THE ASSESSING OFFICER IN ASST. YEAR 2008-09 TRE ATED SUCH INCOME AS INCOME FROM HOUSE PROPERTY AND ALSO INCREASED IT BY TAKING ANNUAL RETURN VALUE ON THE BASIS OF ESTIMATED COST OF LAND & LEAR NED CIT(A) HAD CONFIRMED THE ORDERS OF ASSESSING OFFICER. THE LEARNED SENIOR COU NSEL FURTHER SUBMITTED THAT APPEALS AGAINST THE ORDER OF LEARNED CIT(A) CONFIRM ING THE ACTION OF ASSESSING OFFICER ARE PENDING BEFORE THIS TRIBUNAL. HE FURTHE R INVITED OUR ATTENTION TO AN APPLICATION FOR ADMISSION OF ADDITIONAL GROUND OF A PPEAL, WHEREIN THE ASSESSEE HAS TAKEN A GROUND THAT THE INCOME OF THE ASSESSEE HAS TO BE TAXED AS BUSINESS INCOME ONLY IN VIEW OF THE SUPREME COURT J UDGMENT IN A RECENT DECISION DATED 09.04.2015 IN THE CASE OF CHENNAI PR OPERTIES & INVESTMENTS LTD. 373 ITR 673 (SC) WHEREIN THE HONBLE COURT HAS HELD THAT WHERE IN THE MEMORANDUM OF ASSOCIATION OF COMPANY, MAIN OBJECTS OF A COMPANY WAS TO ACQUIRE PROPERTIES AND EARN INCOME BY LETTING OUT T HE SAME, SUCH INCOME IS TAXABLE AS BUSINESS INCOME AND NOT AS INCOME FRO M HOUSE PROPERTY. THE LEARNED SENIOR COUNSEL SUBMITTED THAT FOLLOWING THE ABOVE SUPREME COURT ORDER IN THE FOLLOWING CASES, THE HONBLE TRIBUNAL HAS TAKEN A SIMILAR VIEW. (I.) SHREEJI EXHIBITORS VS. ACIT. ITA NO. 640/MUM/2 014 (MUMBAI) (II) C.R. DEVELOPMENTS PVT. LTD. VS. JCIT, ITA NO. 4277/MUM/2012 (MUMBAI) 4. S.A NOS. 15 TO 20(ASR)/2015 THE LEARNED SENIOR COUNSEL SUBMITTED THAT THE MAIN OBJECT OF THE ASSESSEE IS ALSO TO ACQUIRE AND LEASING OUT THE PROPERTY IN THE STATE OF JAMMU & KASHMIR, THEREFORE, FOLLOWING THE RATIO OF ABOVE HONBLE SUP REME COURT CASE THE RENTAL INCOME EARNED FROM LETTING-OUT THE PROPERTY IS BUSI NESS INCOME. IN THIS RESPECT, THE LEARNED SENIOR COUNSEL INVITED OUR ATT ENTION TO COPY OF MEMORANDUM OF ASSOCIATION PLACED AT PAPER BOOK PAGE 285 TO 289. OUR SPECIFIC ATTENTION WAS INVITED TO PAPER BOOK PAGE-2 87 WHERE A COPY MENTIONING THE MAIN OBJECTS OF ASSESSEE COMPANY WAS PLACED. RE ADING OUT THE MAIN OBJECT CLAUSE 1 & 2 THE LEARNED SENIOR COUNSEL SUBMITTED T HAT SINCE THE MAIN OBJECT OF THE ASSESSEE ALSO INCLUDES ACQUIRING OF LANDS AND B UILDINGS AND LETTING-OUT THEM, THEREFORE, THE HONBLE SUPREME COURTS DECISI ON IN THIS CASE IS SQUARELY APPLICABLE. HE SUBMITTED THAT THIS GROUND COULD NOT BE TAKEN IN THE APPEAL BEFORE THE LEARNED CIT(A) AND HONBLE TRIBUNAL AS A T THE TIME OF FILING OF APPEALS THE SAID JUDGMENT WAS NOT AVAILABLE AND IT WAS PRONOUNCED ONLY ON 09.04.2015. THE LEARNED SENIOR COUNSEL SUBMITTED TH AT SINCE THE ISSUE INVOLVES A LEGAL ISSUE AS TO UNDER WHICH HEAD THE I NCOME OF THE ASSESSEE CAN BE ASSESSED AND IS BASED ON THE FACTS ALREADY AVAILABL E ON RECORD, THEREFORE, THE ABOVE ADDITIONAL GROUND OF APPEAL CAN BE TAKEN UP A T THIS STAGE ALSO. RELIANCE IN THIS RESPECT WAS PLACED ON THE SUPREME COURT DEC ISION IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT 229 ITR 383 . THE LEARNED SENIOR COUNSEL FURTHER SUBMITTED THAT IF THE ADDITIONAL GR OUND IS ADMITTED THE INCOME OF THE ASSESSEE FROM RENT WILL HAVE TO BE ASSESSED AS BUSINESS INCOME AND IN THE CALCULATION OF BUSINESS INCOME, THERE IS NO CON CEPT OF ANNUAL LETTING OUT VALUE AND THEREFORE, THE INCOME WILL HAVE TO BE ASS ESSED AT THE AMOUNT OF 5. S.A NOS. 15 TO 20(ASR)/2015 INCOME EARNED BY ASSESSEE AND THEREFORE THE ENTIRE DEMAND WILL GO AND THEREFORE, THE ASSESSEES STAY APPLICATIONS DESERVE S TO BE ALLOWED. WITHOUT PREJUDICIAL TO THE ABOVE, THE LEARNED SENIOR COUNS EL SUBMITTED THAT EVEN IF HIS CONTENTIONS OF ADDITIONAL GROUND OF APPEAL ARE NOT ADMITTED ON MERITS ALSO THE ASSESSEE HAS A STRONG CASE. THE LEARNED SENIOR COUN SEL SUBMITTED THAT ASSESSEE HAD GIVEN LAND ON LEASE, IN 1998 WHEN MILI TANCY WAS AT ITS PEAK AND THEREFORE, THE LEASE MONEY FIXED AT RS.5 LACS WAS Q UITE REASONABLE SPECIFICALLY IN VIEW OF THE FACT THAT AN AMOUNT OF RS.57 CRORES WAS SPENT BY LESSEE ON THE CONSTRUCTION OF BUILDING AND RENOVATION ON SUCH LAN D AND THEREFORE COSTS INCURRED BY LESSEE ALSO IS ONE OF THE FACTORS FOR D ETERMINATION OF RENTAL VALUE. INVITING OUR ATTENTION TO A DECISION OF RAJASTHAN H IGH COURT IN THE CASE OF CIT VS. H.H.MAHARAJA SHRI GAJ SINGH JI: IT CASE NO. 154 /1990, THE LEARNED COUNSEL SUBMITTED THAT IN THIS CASE FOR A LARGE PROPERTY TH E RENT WAS FIXED ONLY AT RS.100/- PER ANNUM, AND THE HONBLE RAJSTHAN HIGH C OURT HAD DISMISSED THE REFERENCE APPLICATION FILED BY REVENUE HOLDING THAT RENT WAS JUSTIFIED AS LESSEE HAD SPENT A HUGE AMOUNT ON THE RENOVATION OF BUILDI NG. THE LEARNED SENIOR COUNSEL SUBMITTED THAT IN THE PRESENT CASE ALSO, TH E EXPENDITURE INCURRED BY LESSEE WAS HUGE AND LESSOR WAS NOT IN A POSITION TO SPEND THE AMOUNT. THEREFORE, HE SUBMITTED THAT ACTION OF THE LEARNED CIT(A) TO INCREASE ANNUAL RETURN VALUE WAS NOT JUSTIFIED AS THE RATIO OF JUDG MENT OF THIS CASE IS ALSO IN FAVOUR OF ASSESSEE. HE FURTHER SUBMITTED THAT RENT WAS FIXED FOR RS.5,00,000/- PER ANNUM FOR A PERIOD OF EIGHT YEARS AND THEREAFTE R INCREASED TO RS.50,00,000/- FROM ASST. YEAR 2010-11 AND IN EARLI ER YEARS THE ASSESSEE WAS NOT IN A POSITION TO INCREASE RENT UNILATERALLY. RE LIANCE IN THIS RESPECT WAS 6. S.A NOS. 15 TO 20(ASR)/2015 PLACED ON THE DECISION OF DELHI BENCH OF TRIBUNAL I N THE CASE OF VINEET VIRMANI, HUF VS. DCIT 3 (SOT) 102. THE LEARNED COUNSEL FURTH ER SUBMITTED THAT FROM 1998 TO 2004-05, THE RENT OF RS.5,00,000/- WAS BEIN G ACCEPTED AND IT WAS ONLY IN 2008-09 THAT THE EARLIER CASES OF ASSESSEE WERE REOPENED. THE LEARNED COUNSEL FURTHER TOOK US TO PAPER BOOK PAGE 196 WHER E A COMPARATIVE CHART DEPICTING THE LEASE RENT CHARGED BY JAMMU AND KASHM IR GOVERNMENT FROM NEDOUS HOTEL BUILT ON 113 KANAL AND 2 MARLAS WAS PL ACED. THE LEARNED SENIOR COUNSEL INVITED OUR ATTENTION TO THE FACT THAT LEAS E RENT PER ANNUM FOR NEDOUS HOTEL WAS RS. 8,125/- WHICH COMES TO RS.71.84 PER M ONTHS PER KANAL AND THEREFORE, KEEPING IN VIEW PER KANAL RATE, THE LEAS E MONEY IN THE CASE OF ASSESSEE SHOULD HAVE BEEN RS.1,92,198/- WHEREAS ASS ESSEE WAS GETTING RS,5,00,000/- PER ANNUM AND THEREFORE, HE SUBMITTED THAT BY ANY YARDSTICK RENTAL VALUE RECEIVED BY ASSESSEE WAS QUITE REASONA BLE AND WAS ABOVE THE RATES CHARGED BY JAMMU & KASHMIR GOVERNMENT. THE SENIOR C OUNSEL IN THIS RESPECT INVITED OUR ATTENTION TO THE PROVISIONS OF SECTION 23 (1) (A) & (B) AND ARGUED THAT IN VIEW OF THE LEASE MONEY FIXED BY JAMMU & KASHMIR GOVERNMENT IN THE CASE OF NEDOUS HOTEL THE LEASE MONEY RECEIVED BY ASSESSE E WAS QUITE REASONABLE. IN VIEW OF ABOVE ARGUMENTS THE SENIOR COUNSEL SUBMITTE D THAT ON MERITS ALSO THE ASSESSEE HAS A STRONG CASE THEREFORE, THE STAY APPL ICATION NEEDS TO BE ALLOWED. 4. THE LEARNED DR ON OTHER HAND, SUBMITTED THAT ADD ITIONAL GROUND IS NOT ADMISSIBLE AT ALL AS ASSESSEE IN ASSESSMENT PROCEED INGS ITSELF HAD SUBMITTED THAT INCOME BE ASSESSED AS INCOME FROM HOUSE PROPER TY AND THEREFORE, NOW THE LEARNED AR CANNOT BE PERMITTED TO ARGUE ON AN ADDIT IONAL GROUND WHEREIN IT IS REVERTING ITS EARLIER STAND FROM INCOME FROM HOUSE PROPERTY TO BUSINESS 7. S.A NOS. 15 TO 20(ASR)/2015 INCOME. HE ARGUED THAT FOR THE PURPOSE OF STAY APPL ICATIONS ADDITIONAL GROUND CANNOT BE CONSIDERED AS THE SAME HAS NOT YET BEEN A DMITTED. THE ASSESSEE NEEDS TO ANSWER THE OBJECTIONS BY DEPARTMENT BEFORE ADMISSION OF SUCH ADDITIONAL GROUND AND THEREFORE, HE ARGUED THAT WIT HOUT ADMISSION OF ADDITIONAL GROUND ITS MERIT SHOULD NOT BE CONSIDERE D FOR THE PURPOSE OF GRANTING STAY. THE LEARNED DR, FURTHER SUBMITTED TH AT THE AFFAIRS OF ASSESSEE ARE ALL MANAGED AFFAIRS AND IT HAS USED COLOURABLE DEVICE TO AVOID TAXATION AND IN THIS RESPECT, HE INVITED OUR ATTENTION TO PAGE-2 OF ASSESSMENT ORDER AND SUBMITTED THAT M/S BHARAT HOTELS LTD, WHO IS A LESS EE IS IN FACT A SHAREHOLDER OF ASSESSEE COMPANY HOLDING 99% OF SHARES AND THERE FORE, LESSEE AND LESSOR ARE IN FACT THE SAME PERSONS WHO CAN ENTER INTO ANY TYPE OF AGREEMENT SPECIFYING ANY AMOUNT OF RENT, THEREFORE, THE LEASE EXECUTED BY ASSESSEE WITH M/S BHARAT HOTELS LIMITED IS OF NO SIGNIFICANCE. I NVITING OUR ATTENTION TO THE LEASE DEED, THE LEARNED DR SUBMITTED THAT THE PROPE RTY IN FACT HAS BEEN SOLD TO THE M/S BHARAT HOTELS LTD. AS LEASE IS FOR 99 YEARS AND M/S BHARAT HOTELS LTD. ITSELF IS A SHAREHOLDER OF ASSESSEE COMPANY TO THE EXTENT OF 99%. THE LEARNED DR FURTHER SUBMITTED THAT DEPARTMENT IS ALSO IN APP EAL AND DEPARTMENT IS LIKELY TO SUCCEED AND THEREFORE, STAY SHOULD NOT BE GRANTED AS BALANCE OF CONVENIENCE IS IN FAVOUR OF REVENUE AND NOT IN FAVO UR OF ASSESSEE. HE FURTHER SUBMITTED THAT ASSESSEE ITSELF HAS INCREASED THE RE NT FROM RS. 5.00.000/- TO RS. 50,00,000/- AND CIT(A) HAD INCREASED IT TO RS. 62,00,000/- SO THERE IS A VERY SMALL DIFFERENCE OF RS. 12,00,000/-. AS REGARD S THE ARGUMENT OF LEARNED AR THAT THE RETURN OF INCOME UNDER THE HEAD OF BUS INESS INCOME WAS EARLIER ACCEPTED BY THE DEPARTMENT, THE LEARNED DR SUBMITTE D THAT THE CASES OF THE 8. S.A NOS. 15 TO 20(ASR)/2015 ASSESSEE HAS BEEN REOPENED AND THE CASES WHICH HAVE NOT BEEN REOPENED WERE BARRED BY LIMITATION AND THEREFORE, THIS ARGUMENT O F LEARNED AR CANNOT HOLD GROUND. AS REGARDS RELIANCE PLACED BY LEARNED AR ON THE DECISION OF RAJSTHAN HIGH COURT, THE LEARNED DR SUBMITTED THAT IN THAT C ASE THE ASSESSEE HAD LEASED THE LAND AND BUILDING TO A TRUST WHO HAD CON VERTED THE SAME INTO A MUSEUM WHEREAS IN THE PRESENT CASE THE ASSESSEE HAS CONVERTED THE LAND BUILDING INTO A LUXURIOUS HOTEL FROM WHICH IT IS EA RNING HUGE AMOUNT. THE LEARNED DR FURTHER SUBMITTED THAT NOT EVEN A SINGLE AMOUNT OF TAX HAS BEEN PAID BY ASSESSEE, THEREFORE, STAY APPLICATIONS FILE D BY ASSESSEE NEEDS TO BE DISMISSED IN A SUMMARY MANNER. THE LEARNED DR FURTH ER SUBMITTED THAT GETTING STAY IS NOT A LEGAL OR FUNDAMENTAL RIGHT OF ASSESSEE AND DENIAL OF STAY WILL NOT INFRINGE ANY LEGAL OR FUNDAMENTAL RIGHT AN D IN THIS RESPECT RELIANCE WAS PLACED ON THE JUDGMENT OF THE HONBLE J & K HIGH CO URT IN THE CASE OF PANKAJ DUTTA VS. INCOME TAX OFFICER & 0RS. 44 DTR 230 (J&K ). THE LEARNED DR SUBMITTED THAT LEARNED AR HAS NOT PRESSED ANY GROUN DS OF APPEAL ALSO THEREFORE, STAY APPLICATIONS NEEDS TO BE DISMISSED. 5. THE LEARNED SENIOR COUNSEL IN HIS REJOINDER SUBM ITTED THAT FOR GETTING STAY OF DEMAND OF TAX THE ASSESSEE HAS TO PROVE PRI MA-FACIE THE MERITS OF THE CASES AND THEREFORE, THE ADDITIONAL GROUND TAKEN BY ASSESSEE HAS BEEN HIGHLIGHTED ONLY FOR THE PURPOSE OF MAKING A PRIMA- FACIE CASE THAT IF THE ADDITIONAL GROUND IS ADMITTED NO TAX WILL REMAIN TO BE PAID AND THERE IS NO ESTOPLE IN LAW IN CHANGING THE STAND TAKEN BY ASSES SEE AS LONG AS THE CHANGE IN STAND IS LEGAL & CORRECT, AS THE REVENUE AUTHORITIE S HERE ARE ONLY TO COLLECT LEGITIMATE TAX AS PER LAW OF THE LAND. THE LEARNED SENIOR COUNSEL SUBMITTED 9. S.A NOS. 15 TO 20(ASR)/2015 THAT AFTER THE SUPREME COURT ORDER IN THE CASE OF C HENNAI PROPERTY (SUPRA), THE ASSESSEE CAME TO KNOW ABOUT ITS LEGAL RIGHT THAT IT S INCOME CAN BE ASSESSED AS BUSINESS INCOME AND THEREFORE THIS GROUND CAN BE TA KEN FOR THE PURPOSES OF STAY ALSO. AS REGARDS THE ARGUMENT TAKEN BY LEARNED DR THAT HE HAD NOT PRESSED THE GROUNDS OF APPEAL THE LEARNED AR SUBMIT TED THAT HE HAS NOT PRESSED LEGAL GROUNDS OF APPEAL FOR RE-ASSESSMENT. MY PURPOSE IS ACHIEVED IF I WAS ABLE TO MAKE A PRIMA-FACIE CASE IN FAVOUR OF AS SESSEE. AS REGARDS THE ARGUMENT OF LEARNED DR THAT IT IS COLORABLE DEVICE, THE LEARNED SENIOR COUNSEL SUBMITTED THAT THE ASSESSEE IS A SEPARATE LEGAL ENT ITY AND IS HAVING PAN NO. AND IS BEING ASSESSED AT THE SAME RATE OF TAX AS LE SSOR AND MOREOVER THE LEASE MONEY PAID BY LESSOR IS A DEDUCTIBLE EXPENDITURE, T HEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE WAS USING A COLOURABLE DEVICE. AS REGARDS ARGUMENT OF LEARNED DR THAT THE DEPARTMENT WAS ALSO IN APPEAL, THE LEARNED SENIOR COUNSEL SUBMITTED THAT IT DOES NOT AFFECT THE STAY APPLICATIONS AS ASSESSEE IS IN APPEAL FOR THE BALANCE OF DEMAND AFTER RELIEF GR ANTED BY CIT(A). HE SUBMITTED THAT IF REVENUE WINS IN APPEALS THE DEMAND OF TAX W ILL THEN AUTOMATICALLY REVIVE AND THERE IS NO LOSS TO REVENUE. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ONE OF THE ARGUM ENTS TAKEN BY LEARNED SENIOR COUNSEL FOR ESTABLISHING PRIMA-FACIE CASE IN FAVOUR OF ASSESSEE IS BASED UPON THE ADDITIONAL GROUND. SINCE, THE ADMISSION OF ADDITIONAL GROUND HAS NEITHER BEEN FULLY ARGUED BY LEARNED SENIOR COUNSEL NOR THE SAME HAS BEEN OPPOSED BY LEARNED DR, WE DEEM IT APPROPRIATE THAT APPEALS OF THE ASSESSEE BE HEARD OUT OF TERM ON A PRIORITY BASIS SO THAT THE A PPEALS ITSELF COULD BE 10. S.A NOS. 15 TO 20(ASR)/2015 DISPOSED OFF. THEREFORE, WE DIRECT THE REGISTRY TO FIX THE APPEALS FOR HEARING ON 17.12.2015 UNDER INTIMATION TO BOTH PARTIES. IN THE MEANWHILE THE DEPARTMENT IS DIRECTED NOT TO TAKE ANY COERCIVE MEASURES FOR R ECOVERY OF DEMAND TILL THE DISPOSAL OF APPEALS AS THE OTHER ARGUMENTS OF THE S ENIOR COUNSEL ALSO ESTABLISH A PRIMA FACIE CASE FOR GRANT OF STAY. BOTH PARTIES WILL MAKE AN ENDEAVOR TO NOT TO SEEK ADJOURNMENTS WITHOUT REASONABLE CAUSE AND W ILL HELP THE BENCH IN DISPOSAL OF APPEALS, AT THE EARLIEST. 7. IN VIEW OF THE ABOVE THE STAY APPLICATIONS FILED BY ASSESSEE ARE DISPOSED OFF AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON O CTOBER, 27 TH 2015. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED:27.10. 2015 /PK/ PS. COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S JYOTI LTD., SRINAGAR. 2. THE DCIT CIRCLE-3, SRINAGAR , ACIT, CRILCE-3, SRIN GAR. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.