Mamta Jain, Visakhapatnam V. The Assistant Commissioner of Income Tax, Central Circle-1, Visakhapatnam

SA 24/VIZ/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4039 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 26-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Application of stay; Capital Gains
• Section: 201

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.P .NO. 2 3 & 24 /VIZ/ 201 9 (ARISING OUT OF I.T.A.NO. 1 9 2 & 193 /VIZ/201 9 RESPECTIVELY ) ( / ASSESSMENT YEAR: 201 0 - 1 1 AND 2015 - 16 ) SMT.MAMATA JAIN D.NO. 50 - 50 - 28/9 T.P.T.COLONY SEETHAMMADHARA VISAKHAPATNAM [ PAN : A CXPJ7520K ] VS. ASST.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 1 VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI G.V.N.HARI , AR / RESPONDENT BY : S MT.SUMAN MALIK , DR / DATE OF HEARING : 02 . 05 .201 9 / DATE OF PRONOUNCEMENT : 02 .05.2019 / O R D E R PER D.S. SUNDER SINGH , ACCOUNTANT MEMBER : IN THE INSTANT CASE, THE ASSESSEE HAS FILED STAY PETITION REQUESTING FOR GRANT OF OUTSTANDING DEMAND OF FOR THE A.Y.2010 - 11 AND 2015 - 16 AS UNDER: 2 S.P. NO . 2 3 & 24 /VIZ/201 9 MAMATA JAIN , VISAKHAPATNAM A.Y. AMOUNT OUTSTANDING (RS.) 2010 - 11 40,39,154 2015 - 16 14,08,024 TOTAL 54,47,176 2. DURING THE HEARING, THE LD.AR SUBMITTED THAT THE ISSUE INVOLVED IN THIS CASE IS CLAIM OF EXEMPTION U/S 10(38) IN RESPECT OF LONG TERM CAPITAL GAINS AND THE ASSESSEE HAS MAINTAINED COMPLETE DOCUMENTATION TO SUPPORT THE LONG TERM CAPITAL GAINS, THEREFORE ARGUED THAT THE ASSESSEE IS HAVING FAIR CHANCES OF SUCCEEDING IN APPEAL, THEREFORE, REQUESTED FOR GRANT OF STAY OF DEMAND. 3. ON THE OTHER HAND, THE LD.DR ARGUED THAT THE LD.CIT(A) HAS CONFIRMED THE ADDITIONS MADE BY THE AO AND THE DEPARTMENT IS ALSO HAVI NG FAIR CHANCES OF SUCCEEDING THE APPEAL, THEREFORE VEHEMENTLY OPPOSED FOR GRANT OF STAY. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE THE TOTAL DEMAND RAISED FOR ASSESSMENT YEAR 2010 - 11 AND 2015 - 16 WAS RS.68 ,08,970/ - AND OUT OF WHICH THE ASSESSEE HAD ALREADY PAID THE SUM OF RS.13,61,794/ - WHICH WORKS OUT TO 20%. DURING THE HEARING OF STAY PETITION, THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS HAVING FINANCIAL PROBLEMS DUE TO LIQUIDITY, THEREFORE, REQUESTED TO GRANT THE STAY OF 3 S.P. NO . 2 3 & 24 /VIZ/201 9 MAMATA JAIN , VISAKHAPATNAM DEMAND. FOR A QUERY FROM THE BENCH, THE LD.DR HAS REQUESTED FOR PAYMENT OF 50% OF THE DEMAND FOR GRANT OF STAY. THE LD.AR SUBMITTED THAT THE ASSESSEE IS FACING SEVERE FINANCIAL PROBLEMS AND NOT IN A POSITION TO MAKE THE PAYMENT OF 50% O F THE DEMAND. SINCE, THE ASSESSEE HAS ALREADY PAID 20% OF THE DEMAND, THE LD.AR EXPRESSED NO OBJECTION TO MAKE FURTHER PAYMENT OF 10% OF THE OUTSTANDING DEMAND. 5. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE PARTIES AND INCLINED TO GRANT STAY FOR 180 DAYS FROM THE DATE OF THIS ORDER SUBJECT TO PAYMENT OF 10% OF THE OUTSTANDING DEMAND IN 3 EQUAL MONTHLY INSTALMENTS COMMENCING FROM THE MONTH OF MAY 2019. THE ASSESSEE IS REQUIRED PAY THE FIRST INSTALLMENT BEFORE 31 ST MAY 2019, SECOND INSTALLMENT BEFORE 30 TH JUNE 2019 AND THE LAST INSTALLMENT SHOULD BE PAID ON OR BEFORE 31 ST JULY 2019. IN CASE THE ASSESSEE COMMITS DEFAULT IN PAYMENT OF INSTALLMENTS OR THE ASSESSEE SEEKS ADJOURNMENT ON THE DATE OF HEARING WITHOUT REAS ONABLE CAUSE, THE FACILITY GRANTED TO THE ASSESSEE WOULD BE WITHDRAWN AND THE DEPARTMENT IS FREE TO COLLECT THE DEMAND. 6 . IN THE RESULT, STAY APPLICATION OF THE ASSESSEE IS ALLOWED. 4 S.P. NO . 2 3 & 24 /VIZ/201 9 MAMATA JAIN , VISAKHAPATNAM ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND MAY 2019 . S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 02 . 05.2019 L. RAMA, SPS /COPY OF THE ORDER FORWARDED TO: - 1. / THE APPELLANT SMT.MAMATA JAIN, D.NO.50 - 50 - 28/9, T.P.T.COLONY SEETHAMMADHARA, VISAKHAPATNAM 2 . / THE RESPONDENT ASST.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1, VISAKHAPATNAM 3 . THE PR.COMMISSIONER OF INCOME TAX (CENTRAL), VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, VISAKHAPATNAM 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM