Dev Kumar Roy , Bangalore V. Income Tax Officer Ward-3(1)(1), Bangalore

SA 219/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6057 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 27 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: 2012-2013
• Appeal Filed On: 04-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PADAMCHAND KHINCHA
• Keywords: Gift

Judgement Text

SP.219/BANG/2018 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'C', BENGALURU BEFORE SHRI. JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER STAY PETITION NO.219/BANG/2018 (IN I.T.A NO.2350/BANG/2018) (ASSESSMENT YEAR : 2012-13) SHRI. DEV KUMAR ROY, 44, REGENCY MARGOSA, KASTURBA ROAD, BENGALURU 560 001 .. APPLICANT PAN : ANNPR8181R V. INCOME-TAX OFFICER, WARD -3(1)(1), BENGALURU .. RESPONDENT ASSESSEE BY : SHRI. PADAMCHAND KHINCHA, CA REVENUE BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT HEARD ON : 14.09.2018 PRONOUNCED ON : 14.09.2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THE PRESENT TWO STAY PETITION IS FILED BY THE ASSE SSEE FOR GRANT OF STAY WITH RESPECT TO THE OUTSTANDING DEMAND OF R S.2,52,74,796/- FOR THE ASSESSMENT YEAR 2012-13. SP.219/BANG/2018 PAGE - 2 02. IT WAS THE CASE OF THE ASSESSEE THAT THE AO HAS DENIED THE BENEFIT OF LONG-TERM CAPITAL GAINS AND THE CLAIM U/ S.54F AND HAS TREATED IT AS SHORT TERM CAPITAL GAINS. ON THE BAS IS OF THE ABOVE THE AO HAD RAISED A DEMAND OF RS.5,05,49,590/-, AS AGAI NST THAT THE ASSESSEE HAD ALREADY PAID THE AMOUNT OF RS.2,52,74, 795/-. THUS MORE THAN 50% OF THE AMOUNT STOOD ALREADY PAID. IT WAS SUBMITTED THAT THE ASSESSEE IS HAVING A PRIMA FACIE CASE AND THE BALANCE OF CONVENIENCE WAS IN FAVOUR OF THE ASSESSEE. IF THE STAY WAS NOT GRANTED BY THE ASSESSEE WOULD BE BURDENED WITH FINA NCIAL HARDSHIP. IT WAS ALSO SUBMITTED THAT THE MATTER IS FIXED FOR HEARING ON 24.12.2018 AND PRAYED FOR AN EARLY HEARING. 03. PER CONTRA THE LD. DR VEHEMENTLY OPPOSED THE ST AY PETITION AND SUBMITTED THAT THE ASSESSEE SHOULD BE BURDENED WITH PAYMENT OF SOME MORE AMOUNT OVER AND ABOVE THE AMOUNT ALREADY PAID. 04. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. ADMITTEDLY THE ASSESSEE HAD ALREADY PAID MORE THAN 50% OF THE TOTAL DEMAND AND IT IS ALSO NOT DISPUTED THAT THE A SSESSEE HAD DECLARED THE INCOME IN ITS TAX RETURN AS A GIFT AND HAS SHOWN AN AMOUNT OF RS.1,05,25,518/- U/S.56 OF THE ACT. AT T HIS STAGE THE LD. AR HAS NOT SHOWN ANY DOCUMENT SHOWING THAT THE DISC LOSURE MADE BY THE ASSESSEE WAS DENIED BY THE AO. SP.219/BANG/2018 PAGE - 3 05. IN VIEW OF THE ABOVE, THOUGH IT IS DISPUTED BY THE LD. DR THAT THE ASSESSEE HAS NOT BEEN ABLE TO MAKE OUT A PRIMA FACIE CASE, BUT CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES, WE G RANT STAY OF RECOVERY OF THE REMAINING TAX DEMAND, FOR A PERIOD OF SIX MONTHS OR TILL THE DISPOSAL OF THE APPEAL, WHICHEVER IS EARLI ER. WE ALSO GRANT EARLY HEARING OF APPEAL. THE DATE OF APPEAL IS NOW PREPONED TO 10.10.2018 INSTEAD OF 24.12.2018. THE STAY IS GRANT ED AS ABOVE, ON THE FOLLOWING TERMS AND CONDITIONS : THE ASSESSEE SHALL FILE PAPER BOOKS / DOCUMENTS BE FORE NDOH AFTER SUPPLYING THE SAME TO THE REVENUE AND IT IS FURTHER DIRECTED THAT THE ASSESSEE SHALL NOT TAKE ANY UNDUE ADJOURNMENT IN THE MATTER. IN CASE ANY OF THE TERMS AND CONDITION S IS VIOLATED THEN THE STAY GRANTED BY THE TRIBUNAL SHALL BE DEEMED TO HAVE BEEN VACATED. NO SEPARATE NOTICE OF HEARING SHALL BE GI VEN TO THE PARTIES AS THE DATE OF HEARING WAS ANNOUNCED IN THE OPEN CO URT AT THE TIME OF HEARING. NEEDLESS TO SAY NOTHING STATED HEREINA BOVE SHALL BE CONSIDERED AS AN EXPRESSION ON MERITS OF THE CASE A ND IS ONLY PRIMA FACIE OBSERVATIONS OF THE BENCH. 06. IN THE RESULT, THE STAY PETITION IS ALLOWED TO THE ABOVE MENTIONED EXTENT. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DAY OF SEPTEMBER 2018. SD/- SD/- (JASON P. BOAZ) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBE R BENGALURU DATED : 14.09.2018 MCN* SP.219/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.