Shri. Kokkalera Medappa Thammiah , Bangalore V. Income Tax Officer Ward-5(3)(5), Bangalore

SA 182/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6005 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 26 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: 2013-2014
• Appeal Filed On: 05-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: B SUDHEENDRA
• Keywords: Application of stay
• Section: 54F

Judgement Text

SP.182/BANG/2018 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, BENGALURU BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER SP NO.182/BANG/2018 (IN ITA NO.580/BANG/2018 (ASSESSMENT YEAR : 2013-14) SHRI KOKKALERA MEDAPPA THAMMIAH, C-602, BAIRAVI CRUZ LUXOR, CHELEKERE MAIN ROAD, KALYAN NAGAR, BENGALURU-560043. VS. PETITIONER INCOME-TAX OFFICER, WARD 5(3)(5), BENGALURU. RESPONDENT PETITIONER BY : SHRI B.SUDHEENDRA, ADVOCATE. RESPONDENT BY : DR. P.V.PRADEEP KUMAR, ADDL.CIT(DR) DATE OF HEARING : 15/06/2018 DATE OF PRONOUNCEMENT : /06 /2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THIS STAY PETITION IS FILED BY THE ASSESSEE SEEKIN G STAY OF OUTSTANDING DEMAND OF RS.15,89,150/-, FOR THE ASSES SMENT YEAR 2013-14. 2. IT WAS SUBMITTED BY THE LD. AR THAT DURING THE Y EAR UNDER CONSIDERATION THE ASSESSEE SOLD A RESIDENTIALLY CON VERTED PIECE OF AGRICULTURAL LAND FOR AN AMOUNT OF RS.2,56,47,152/- , ON ACCOUNT OF SP.182/BANG/2018 PAGE - 2 WHICH CAPITAL GAIN OF RS.2,54,20,176/- AROSE. THE ASSESSEE HAD INVESTED AN AMOUNT OF RS.2,25,05,858/- IN A RESIDEN TIAL PROPERTY AND THEREFORE THE ASSESSEE HAD CLAIMED THE BENEFIT OF S ECTION 54F OF THE ACT, ON SALE OF THE PROPERTY. CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE AO PASSED THE ASSESSMENT ORDER RES TRICTING THE COST OF REINVESTMENT AT RS.133,99,741/- AND HAD DENIED T HE BENEFIT OF 54F OF AN AMOUNT OF RS.90,25,530/-. IT WAS THE CAS E OF THE ASSESSEE THAT ITS CASE IS COVERED BY THE JUDGMENT OF THE HON BLE JURISDICTIONAL HIGH COURT. FURTHER IT WAS SUBMITTED THAT THE ASSE SSEE HAD PAID AN AMOUNT OF RS.7 LAKHS AGAINST THE TOTAL DEMAND OF RS .22,89,150/-. HOWEVER THE STAY APPLICATION OF THE ASSESSEE WAS DI SMISSED ON ACCOUNT OF NON-APPEARANCE ON 18.04.2018 AND THEREFO RE THE PRESENT APPLICATION IS FILED BY THE ASSESSEE. 3. ON THE OTHER HAND THE LD. DR VEHEMENTLY OPPOSED THE GRANT OF STAY BY THE TRIBUNAL AND SUBMITTED THAT THE UPGR ADING AGREEMENT IS CAMOUFLAGE TO AVOID THE TAX LIABILITY. IT WAS S UBMITTED THAT IF THE UPGRADING BEING A PART AND PARCEL OF THE AGREEMENT, THEN CONSIDERATION SHOULD HAVE BEEN MENTIONED IN THE AGR EEMENT WHICH INCLUDED IN THE UPGRADING AGREEMENT. HOWEVER THE N EEDFUL HAS NOT BEEN DONE. THEREFORE THIS ASPECT SHOULD BE CONSIDE RED BY THE TRIBUNAL WHILE CONSIDERING THE STAY APPLICATION. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. AS THE ASSESSEE HAD ALREADY PAID 1/3 RD OF THE TAX DEMAND OF RS.7 LAKHS AND FURTHER THE CASE OF THE ASSESSEE IS ALSO COVERED BY THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT A ND TRIBUNAL IN RAJAT B. MEHTA [(2018) 90 TAXMANN.COM 176] THEREFOR E AT THIS STATE SP.182/BANG/2018 PAGE - 3 IN THE INTEREST OF JUSTICE, WE DIRECT THE REVENUE T O RESTRAIN FROM TAKING ANY COERCIVE ACTION FOR RECOVERY OF THE BALA NCE OF THE OUTSTANDING DEMAND. WE HEREBY GRANT THE STAY OF TH E OUTSTANDING DEMAND FOR A PERIOD OF SIX MONTHS OR TILL THE DISPO SAL OF APPEAL, WHICHEVER IS EARLIER. 5. WE WOULD LIKE TO ADD AS A CONDITION OF STAY THAT THE ASSESSEE SHALL FILE PAPER BOOKS / DOCUMENTS BEFORE NDOH AFTE R SUPPLYING THE SAME TO THE REVENUE AND IT IS FURTHER DIRECTED THAT THE ASSESSEE SHALL NOT TAKE ANY UNDUE ADJOURNMENT IN THE MATTER. IN C ASE OF THE TERMS AND CONDITIONS IS VIOLATED THEN THE STAY GRANTED BY THE TRIBUNAL SHALL BE DEEMED TO HAVE BEEN VACATED. NO SEPARATE NOTICE OF HEARING SHALL BE GIVEN TO THE PARTIES AS THE DATE OF 19.07. 2018 WAS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF PART IES. NEEDLESS TO SAY NOTHING STATED HEREINABOVE SHALL BE CONSIDERED AS AN EXPRESSION ON MERITS OF THE CASE AND IS ONLY PRIMA FACIE OBSER VATIONS OF THE BENCH. 6. IN THE RESULT, STAY APPLICATION FILED BY THE ASS ESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DAY OF JUNE, 2018. SD/- SD/- (INTURI RAMA RAO) ( LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER BENGALURU DATED : 20.06.2018 MCN* SP.182/BANG/2018 PAGE - 4 COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.