ANUJ MATHUR, Jaipur V. DEPUTY COMMISSIONER OF INCOME TAX, Jaipur

SA 30/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3612 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 19-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: ISHA KANOONGO
• Keywords: Application of stay
• Section: 192

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M S.A. NO. 30/JP/2017 (ARISING OUT OF ITA NO. 971/JP/2017 FU/KZKJ.K O'KZ @ ASSESSMENT YEAR : 2015-16 ANUJ MATHUR, A-8, SHYAM NAGAR, AJMER ROAD, JAIPUR-302019. CUKE VS. D.C.I.T. CENTRAL CIRCLE-4, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AEZPM 2576 G VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI S.L. PODDAR & MR. ISHA KANOONGO (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT). LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/02/2018 MN~?KKS'K.KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 09/02/2018 VKNS'K @ ORDER PER: BHAGCHAND, A.M. THE ASSESSEE HAS FILED THE PRESENT STAY PETITION ON 19/12/2017 AGAINST THE DEMAND, WHICH HAS BEEN RAISED BY THE DEP ARTMENT FOR A.Y. 2015-16. 2. THE ASSESSEE IS A INDIVIDUAL AND DERIVED INCOME F ROM SALARY, HOUSE PROPERTY, BUSINESS OR PROFESSION AND OTHER SO URCES. THE ASSESSEE FILED HIS RETURN OF INCOME OF ON 30/09/2015 DECLARI NG TOTAL INCOME OF RS. S.A. NO. 30/JP/2017 ANUJ MATHUR VS. DCIT 2 7,88,48,920 INCLUDING THE SURRENDERED INCOME OF RS. 7,01,00,000/-. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 143( 3)/153B(1)(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ON 29/12/ 2016) DETERMINING TOTAL INCOME OF RS. 7,88,69,476/-. THE ASSESSING O FFICER HAS IMPOSED A PENALTY OF RS. 70,10,000/- U/S 271AAB(1)(A) OF THE ACT WITH REFERENCE TO THE SURRENDERED INCOME OF RS. 7,01,00,000/-. THE ASS ESSEE FILED APPEAL BEFORE THE LD CIT(A), WHO HAD DISMISSED THE APPEAL BY CONFIRMING THE PENALTY. THE REVENUE HAS DEMANDED THE AMOUNT OF PENA LTY, FOR WHICH THE ASSESSEE IS IN S.A. BEFORE THE ITAT. 3. THE LD AR WHILE PLEADING ON BEHALF OF THE ASSESSE E HAS SUBMITTED AS UNDER: THE DEPARTMENT IS HARDLY PRESSING FOR RECOVERY OF D EMAND WHEREAS THE ASSESSEE HAS ALREADY DEPOSITED THE SUBST ANTIAL PART OF DEMAND. ASSESSEE IS FEARED THAT THE DEPARTMENT WI LL TAKE COERCIVE ACTION. THE REVENUE CAN SEIZE THE BANK ACCO UNTS OF THE ASSESSEE WHICH WILL ADVERSELY EFFECT THE BUSINESS OF THE ASSESSEE. THE ASSESSEE IS ALSO IN GREAT FINANCIAL TROUBLE AND PASSING THROUGH A TOUGH TIME. THE ASSESSEE HAS NO LIQUID FUNDS. THE R EVENUE AUTHORITIES HAVE NOT ENTERTAINED THE STAY APPLICATI ON OF THE ASSESSEE COMPANY. THE ASSESSEE IS NOT IN A POSITION TO DEPOSIT THE HUGE DEMAND. ALL THE ASSETS OF THE ASSESSEE ARE NON -PRODUCTIVE ASSETS AND ALL THE BUSINESS OF THE ASSESSEE HAS STU CKED OFF S.A. NO. 30/JP/2017 ANUJ MATHUR VS. DCIT 3 BECAUSE OF THE MARKET CONDITION. THE ASSESSEE IS CAR RYING ON ITS BUSINESS ON LOAN FUNDS. THEREFORE YOU ARE REQUESTED TO STAY THE BALANCE ENTIRE DEMAND OUTSTANDING TILL THE DISPOSAL OF APPEAL. THE DEMAND IS SUBSTANTIAL AND THE ASSESSEE HAS NO LI QUID FUNDS TO PAY DEMAND. THE BUSINESS OF THE ASSESSEE IS ALSO DUL L. ON THE OTHER HAND IT IS LIKELY THAT THE DEPARTMENT WILL TAK E COERCIVE ACTION TO RECOVER THE DEMAND OUTSTANDING AGAINST THE ASSES SEE. IN VIEW OF THE ABOVE FACTS AND CONSIDERING THE HARDS HIP ON THE ASSESSEE TO MAKE PAYMENT OF DEMAND, THE PRIMA FACIE CASE AND PROTECTION OF THE INTEREST OF THE REVENUE, THE BALA NCE OF CONVENIENCE IS IN FAVOUR OF ASSESSEE AND IT IS FIT CASE FOR GRANTING STAY OF DEMAND TILL THE DISPOSAL OF APPEAL BY HON'B LE ITAT. FURTHER IN VIEW OF DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF H.H. BHAGWAT SINGH OF MEWAR VS. ITAT REPORTED IN 223 I TR 192 (RAJ.), THE DEMAND OUTSTANDING AGAINST THE ASSESSEE SHOULD BE STAYED. IN THIS CASE IT WAS HELD THAT CIRCULAR STATI NG THAT WHERE INCOME DETERMINED ON ASSESSMENT IS MORE THAN TWICE T HE INCOME RETURNED, COLLECTION OF TAX SHOULD BE STAYED DURING APPEAL IS BINDING ON TAX AUTHORITIES. SO UNDER THESE PECULIAR FACTS AND CIRCUMSTANCES WHEN THE ASSESSEE IS ALREADY BEEN MUCH MORE HARASSED, HUGE D EMAND IS OUTSTANDING. THE DEPARTMENT IS' HARDLY PRESSED FOR R ECOVERY. IT IS HUMBLY PRAYED THAT THE DIRECTION SHOULD BE GIVEN TO THE DEPARTMENT TO ALLOW THE ASSESSEE TO DO THE BUSINESS FREELY. S.A. NO. 30/JP/2017 ANUJ MATHUR VS. DCIT 4 THE MADRAS BENCH OF THE TRIBUNAL IN THE MATTER OF WES TERN AGENCIES (MADRAS LTD.) V. JT. CIT (2003) 81 TTJ (MAD) 284 : (2003) 86 ITD 462 (MAD) AFTER CONSIDERING THE VARIOU S JUDGMENTS OF HON'BLE SUPREME COURT AND HON'BLE HIGH COURTS HE LD THAT THE TRIBUNAL HAS POWER TO PASS SUCH APPROPRIATE ORDER IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO MAINTAIN JUDICIAL BALA NCE BETWEEN THE PARTIES AND, THEREFORE, THE POWER UNDER SECTION 254 OF THE ACT WOULD INCLUDE POWER TO GRANT STAY WHICH IS INCIDENTAL OR ANCILLARY TO THE APPELLATE JURISDICTION. WHILE EXERCISING THE POWERS TO GRANT STAY, THE TRIBUNAL WOULD BE HAVING ALL THE POWERS TO GRANT STAY IN THE NATURE OF PROHIBITORY, MANDATORY OR DIRECTORY. SINCE OUR CASE IS THAT WHERE CIRCUMSTANCES ARE PREJU DICE, INCONVENIENCE AND ALSO HARMING TO THE ASSESSEE COMP ANY VIOLATING THE ARTICLE 226 OF THE CONSTITUTION SO OU R CASE FALL INTO THE CATEGORY OF THE CASE AS HON'BLE SUPREME COURT OF IN DIA DECIDED IN THE CASE OF ASSISTANT COLLECTOR OF CENTRAL EXCISE V S. DUNLOP INDIA LTD. AND OTHERS WHEREIN THERE IS THE QUESTION OF BA LANCE OF CONVENIENCE, THERE IS THE QUESTION OF IRREPARABLE I NJURY, THERE IS QUESTION OF PUBLIC INTEREST AND THERE ALSO EXISTS M ANY SUCH FACTORS WORTHY OF CONSIDERATION TO PASS AN INTERIM ORDER BY THE HON'BLE BENCH TO GIVE SOME RELIEF TO THE ASSESSEE. 4. AT THE OUTSET OF HEARING, THE LD CIT DR HAS OPPO SED THE STAY FILED BY THE ASSESSEE AND PRAYED TO CONFIRM THE ORDER OF THE LD. CIT(A) 5. THE BENCH HAVE HEARD BOTH THE SIDES ON THIS ISSUE . AFTER CONSIDERING THE SUBMISSIONS OF BOTH SIDES AND FACT OF THE CASE, WE NOTE S.A. NO. 30/JP/2017 ANUJ MATHUR VS. DCIT 5 THAT THE ASSESSEE HAS ALREADY DEPOSITED RS. 39,70,0 00/- WHICH INCLUDES RS. 16,95,000/- PAID ON 29/01/2018 AFTER THE DATE O F FILING S.A. THE TOTAL DEMAND RAISED BY THE DEPARTMENT IS OF RS. 70,10,000 /-. IN THE INTEREST OF JUSTICE AND IN VIEW OF THE FINANCIAL POSITION NAR RATED BY THE LD AR AND AFTER HIS PLEADINGS, WE STAY THE BALANCE DEMAND TILL DISPOSAL OF THE APPEAL OR 90 DAYS FROM THE DATE OF THIS ORDER WHICHE VER IS EARLIER. THE ASSESSEE SHALL NOT SEEK ADJOURNMENT WITHOUT COMPELLI NG REASONS. 6. IN THE RESULT, STAY PETITION DECIDED IN ABOVE TE RMS. ORDER PRONOUNCED IN THE OPEN COURT ON 09/02/2018. SD/- SD/- FOT; IKY JKO HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 09 TH FEBRUARY, 2018. *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI ANUJ MATHUR, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE D.C.I.T., CENTRAL CIRCLE-4, JAIPU R. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (S.A. 30/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR