SHRI GOVIND SWAROOP GARG, AJMER V. INCOME TAX OFFICER, WARD-1-2, AJMER

SA 28/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3738 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 03-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Application of stay; Reasonable cause; Deemed dividend
• Section: 143(3); 2(22)(e)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM S.A NO. 28/JP/2018 (ARISING OUT OF ITA NO. 614/JP/2018) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 SHRI GOVIND SWAROOP GARG RAVAN KI BAGICHI, AJMER. CUKE VS. THE ITO, WARD-1(2) AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADNPG 9550 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 12/10/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 12/10/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT STAY APPLICATION HAS BEEN FILED BY THE ASSESSEE FOR SEEKING STAY AGAINST THE OUTSTANDING DEMAND ARISING FROM THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/ S 143(3) R.W.S. 147 OF THE ACT DATED 17.03.2015 FOR A.Y. 2010-11. 2. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT TH E MAJOR DEMAND IN THE CASE OF THE ASSESSEE IS ARISING OUT OF ADDIT ION OF RS. 28,35,265/- S.A. NO.28/JP/2018 SHRI GOVIND SWAROOP GARG VS. ITO 2 ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF THE A CT. IT WAS FURTHER SUBMITTED THAT OUT OF TOTAL DEMAND SO RAISED BY THE ASSESSING OFFICER AMOUNTING TO RS. 18,35,900/-, THE ASSESSEE HAS ALRE ADY PAID RS. 3,95,000/- WHICH IS MORE THAN 20% OF THE TOTAL DEM AND. IT WAS FURTHER SUBMITTED THAT THE ADVANCE WAS GIVEN TO THE ASSESSE E FOR PURCHASE OF IMMOVABLE PROPERTY BY THE COMPANY IN WHICH THE ASSE SSEE IS A DIRECTOR AND IN THE APPELLATE PROCEEDING IN THE HANDS OF THE COMPANY, THE ADDITION MADE BY THE AO ON ACCOUNT OF NOTIONAL INTE REST ON ADVANCE SO MADE TO THE ASSESSEE HAS BEEN DELETED. IT WAS ACCOR DINGLY SUBMITTED THAT THE ASSESSEE WAS GIVEN ADVANCE FOR THE BUSINES S PURPOSE AND NOT INTEREST BEARING ADVANCE FOR HIS PERSONAL PURPOSES AS INTENDED BY THE AO AND THUS, THE ASSESSE HAS A PRIMA FACIE CASE IN ITS FAVOUR. IT WAS FURTHER SUBMITTED THAT THE DEPARTMENT IS TAKING VAR IOUS COERCIVE MEASURES AND NOTICES HAVE BEEN ISSUED BY THE TAX RE COVERY OFFICER INCLUDING SHOW CAUSE NOTICE DATED 04.10.2018 AS TO WHY THE WARRANT OF ARREST SHOULD NOT BE ISSUED FOR NON- PAYMENT OF OUT STANDING DEMAND. IT WAS ACCORDINGLY SUBMITTED THAT THE BALANCE DEMAND M AY KINDLY BE STAYED TILL DISPOSAL OF THE APPEAL FILED BEFORE THE TRIBUNAL. 3. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY OB JECTED TO THE STAY OF THE DEMAND AND SUBMITTED THAT THE ASSESSEE S PETITION BEFORE THE LD. CIT(A) DATED 24.09.2018 HAS NOT BEEN DISPOS ED OFF HENCE, THE PRESENT PETITION BEFORE THE TRIBUNAL IS PREMATURE A ND SHOULD NOT BE ACCEPTED. IT WAS FURTHER SUBMITTED BY THE LD. DR TH AT THE ASSESSEE HAS ONLY PAID AROUND 20% OF THE TOTAL DEMAND AND WHERE THE TRIBUNAL SO DECIDE TO FINALLY GRANT THE STAY, THE ASSESSEE MAY BE DIRECTED TO PAY BALANCE DEMAND IN SUITABLE INSTALLMENTS WITHIN A SP ECIFIED TIME FRAME. S.A. NO.28/JP/2018 SHRI GOVIND SWAROOP GARG VS. ITO 3 4. AFTER HEARING BOTH THE PARTIES AND CONSIDERING T HE MATERIAL AVAILABLE ON RECORD, WE NOTE THAT AGAINST THE DEMAN D OF RS. 18,35,900/-, THE ASSESSEE HAS ALREADY PAID RS. 3,95 ,000/- WHICH COMES TO 21.53% OF THE TOTAL DEMAND. SUBJECT TO FURTHER PAYMENT OF RS. 2,00,000/- ON OR BEFORE 31.10.2018, WE DEEM IT APPROPRIATE TO STAY THE BALANCE OUTSTANDING DEMAND FOR A PERIOD OF 3 MO NTHS OR DISPOSAL OF APPEAL, WHICHEVER IS EARLIER. FURTHER, THE HEARING IN THE MATTER, WHICH IS ALREADY LISTED FOR HEARING ON 04.12.2018 IS HEREBY PREPONED TO 12.11.2018. THE ASSESSEE SHALL SUBMIT THE NECESSAR Y CHALLAN IN PROOF OF PAYMENT OF THE TAX DEMAND AS DIRECTED ABOVE BEFO RE THE NEXT DATE OF HEARING. FURTHER, THE ASSESSEE SHALL NOT SEEK AN Y ADJOURNMENT IN THE MATTER AND WHERE ANY ADJOURNMENT IS SOUGHT WITHOUT SHOWING REASONABLE CAUSE TO THE SATISFACTION OF THE BENCH, THE STAY SO GRANTED SHALL STAND VACATED. IN THE RESULT, THE STAY APPLICATION IS DISPOSED OF F IN LIGHT OF ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 12/10/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/10/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: S.A. NO.28/JP/2018 SHRI GOVIND SWAROOP GARG VS. ITO 4 1. VIHYKFKHZ@ THE APPELLANT- SHRI GOVIND SWAROOP GARG, AJMER. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD-1(2), AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {S.A. NO. 28/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR