M/s Sterling Urban Development Pvt ltd , Bangalore V. Deputy Commissioner of Income Tax Circle-6(1)(2), Bangalore

SA 59/BANG/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6193 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 14-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: C SANDEEP
• Keywords: Transfer pricing; Rectification of order
• Section: 143(3); 234B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N. V. VASUDEVAN, VICE PRESIDENT AND SHRI JASON P BOAZ , ACCOUNTANT MEMBER S.P. NO.59/BANG/2019 (IN IT (TP) A NO . 3282 /BANG/201 8 ) ASSESSMENT YEAR : 20 1 4 - 1 5 M/S. STERLING URBAN DEVELOPMENT PVT. LTD., NO.8, LEVEL-5, PRESTIGE NEBULA, CUBBON ROAD, OPP. TO INCOME TAX OFFICE BUILDING, BANGALORE 560 001. PAN : AAACF 9183 C VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 6(1)(2), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI. C. SANDEEP, CA REVENUE BY : SHRI. R. N. SIDDAPPAJI, ADDL. CIT DATE OF HEARING : 22 . 0 2 .201 9 DATE OF PRONOUNCEMENT : 22 . 02 .201 9 O R D E R PER JASON P BOAZ, ACCOUNTANT MEMBER THIS STAY PETITION (SP) ARISES OUT OF THE ASSESSEES APPEAL IN IT(TP)A NO.3282/BANG/2018 FOR ASSESSMENT YEAR 2014-15. 2. BRIEFLY STATED, FACTS OF THE MATTER ARE AS UNDER: S.P. NO.59/BANG/2019 (IN IT(TP)A NO.3282/BANG/2018) PAGE 2 OF 4 2.1 THE ASSESSEE, A COMPANY ENGAGED IN BUSINESS ACTIVITIES RELATING TO REAL ESTATE, BUILDERS, DESIGNERS, ARCHITECTS, ESTATE DECORATORS, CONSULTANTS AND BROKERS OF ALL TYPES OF IMMOVABLE PROPERTIES FOR DEVELOPMENT, OR FOR RESALE AND TO ACT AS BUYERS, SELLERS AND AGENTS, FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2014-15 ON 29.11.2014 DECLARING A LOSS OF RS.74,44,09,458/-. THE CASE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSMENT COMPLETED UNDER SECTION 143(3) R.W.S. 144C(13) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), WHEREIN THE ASSESSEES INCOME WAS DETERMINED AT RS.94,25,60,900/- IN VIEW OF, INTER ALIA, A TRANSFER PRICING ADJUSTMENT OF RS.94,25,45,710/-, WHEREBY THE TOTAL DEMAND RAISED WAS RS.49,14,42,180/- (INCLUSIVE OF INTEREST OF RS.17,84,21,685/- CHARGED U/S 234A AND 234B OF THE ACT). IN THE COURSE OF HEARING OF THE STAY PETITION BEFORE US, IT WAS ASCERTAINED THAT BY VIRTUE OF A RECTIFICATION ORDER PASSED BY THE AO UNDER SECTION 154 OF THE ACT DATED 04.12.2018, THE TOTAL DEMAND OUTSTANDING WAS RECOMPUTED AT RS.9,29,93,360/- (INCLUSIVE OF INTEREST OF RS.3,29,97,635/-) CHARGED UNDER SECTION 234B OF THE ACT. 3. THE LEARNED AR FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS A GOOD CASE ON MERITS AND SINCE IT HAS FINANCIAL HARDSHIP, IT IS NOT IN A POSITION TO PAY ANY PORTION OF THE OUTSTANDING DEMAND OF RS.9,29,93,360/- AND THEREFORE THE TRIBUNAL MAY KINDLY GRANT STAY ON RECOVERY OF OUTSTANDING DEMAND TILL DISPOSAL OF ITS APPEAL FOR ASSESSMENT YEAR 2014-15. 4. THE LEARNED DR VEHEMENTLY OPPOSED THE GRANT OF STAY ON RECOVERY OF THE OUTSTANDING DEMAND SUBMITTING THAT THE ASSESSEE HAS SO FAR NOT PAID A SINGLE RUPEE TOWARDS THE OUTSTANDING TAX DEMAND RAISED AND QUESTIONED THE ASSESSEES CLAIM OF FINANCIAL HARDSHIP BY POINTING OUT THAT THE ASSESSEE HAD HUGE AMOUNTS OF LOANS AND ADVANCES RECOVERABLE FROM WHICH IT SHOULD MAKE GOOD THE ENTIRE TAX DEMAND. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE MATERIAL ON RECORD. TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE S.P. NO.59/BANG/2019 (IN IT(TP)A NO.3282/BANG/2018) PAGE 3 OF 4 ASSESSEES SUBMISSIONS THAT IT IS NOT IN A POSITION TO PAY ANY AMOUNT TOWARDS THE OUTSTANDING TAX DEMAND RAISED, WE ARE OF THE VIEW THAT THIS IS NOT A FIT CASE FOR GRANT OF STAY ON RECOVERY OF THE OUTSTANDING DEMAND OF RS.9,29,93,360/- AND ACCORDINGLY DISMISS THE ASSESSEES STAY PETITION. ON THE REQUEST OF BOTH THE PARTIES, THE HEARING IN THIS CASE WHICH WAS FIXED FOR 28.06.2019, STANDS PREPONED AND EARLY HEARING IS GRANTED ON 13.03.2019. SINCE THE DATE OF EARLY HEARING IS PRONOUNCED IN OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES, NO NOTICE OF HEARING THE APPEAL IN IT(TP)A NO.3282/BANG/2018 FOR ASSESSMENT YEAR 2014-15 IN THE PRESENT CASE NEED BE ISSUED. 6. IN THE RESULT, THE ASSESSEES STAY PETITION FOR ASSESSMENT YEAR 2014-15 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF FEBRUARY, 2019. SD/- SD/- BANGALORE. DATED: 22 ND FEBRUARY, 2019. /NS/* ( N. V. VASUDEVAN ) ( JASON P BOAZ ) VICE PRESIDENT ACCOUNTANT MEMBER S.P. NO.59/BANG/2019 (IN IT(TP)A NO.3282/BANG/2018) PAGE 4 OF 4 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.