VODAFONE DIGILINK LIMITED, Jaipur V. ITO, Jaipur

SA 6/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3571 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 20-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VRINDER MEHTA CIT DHK
• Assessee Lawyers: SPARSH BHARGAVA
• Keywords: Application of stay; TDS
• Section: 2

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 HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM STAY APPLICATION NO. 06 & 07/JP/2017 ( ARISING OUT OF ITA NOS. 68 & 69/JP/2015) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 & 13-14. VODAFONE MOBILE SERVICES LIMITED, (FORMERLY KNOWN AS VODAPHONE ESSAR DIGILINK LTD.), 5 TH FLOOR, GAURAV TOWERS, MALVIYA NAGAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, TDS-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. JPRA 02455 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SPARSH BHARGAVA (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VRINDER MEHTA (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19.05.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30/05/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, J.M. THIS STAY APPLICATIONS (06/JP/2017 & 07/JP/2015) P ERTAINING TO THE ASSESSMENT YEAR 2012-13 AND 2013-14 SEEKING EXTENSI ON OF STAY GRANTED VIDE ORDER DATED 13 TH FEB. 2015 AND SUBSEQUENTLY EXTENDED FROM TIME TO T IME. 2. NOW, WE FIRST TAKE UP STAY APPLICATION NO. 06/JP/2017 (ARISING OUT OF ITA NO. 68/JP/2015). 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THER E WERE DIVERGENT OF VIEWS IN RESPECT OF ISSUES, INVOLVED IN THE APPEAL, FILED BY THE ASSESSEE. THEREFORE, IN APPLICATION FOR CONSTITUTION OF SPECIAL BENCH WAS M ADE WHICH IS PENDING CONSIDERATION BEFORE THE HONBLE PRESIDENT IN ITAT, BOMBAY. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LAST STAY EXTENDED VIDE ORD ER DATED 9 TH NOV. 2016 EXPIRED 30 TH APRIL 2017. HE CONTENDED THAT TILL DATE THE SPECIA L BENCH IS NOT CONSTITUTED, STAY 2 SA NOS. 06 & 07/JP/2017 VODAFONE MOBILE SERVICE LTD. , JAIPUR. MAY BE EXTENDED. FURTHER HE PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE DELHI HIGH COURT RENDERED IN THE CASE OF PEPSI FOODS PVT. LTD. 376 ITR 87 (DEL.) IN SUPPORT OF THE CONTENTION THAT THE TRIBUNAL CAN GRA NT STAY BEYOND THE PERIOD OF 365 DAYS. HE CONTENDED THAT THE PROVISION RESTRICTING T HE GRANT OF STAY BEYOND THE PERIOD OF 365 DAYS HAS BEEN HELD TO BE UNCONSTITUTIONAL. HE FURTHER PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SMT. GODAVARI DEVI SARAF. HE FUR THER CONTENTED THAT THE ASSESSEE HAS MADE PAYMENT OF SUBSTANTIAL AMOUNT OF TAX. IT IS SUBMITTED THAT OUT OF TOTAL DISPUTED DEMAND OF RS. 3,72,08,382/-. THE ASSESSEE HAD ALREADY PAID SUM OF RS. 2,39,00,000/- TILL 6 TH FEB. 2014 AND THE BALANCE OUTSTANDING DEMAND IS RS . 1,33,08,382/- IN RESPECT OF THE ASSESSMENT YEAR 201 2-13. 4. HE SUBMITTED UNDER THESE FACTS, WHEN THERE IS NO DELAY IN DISPOSAL OF THE APPEAL ATTRIBUTABLE TO THE ASSESSEE. THEREFORE, HE PRAYED THAT THE STAY MAY BE EXTENDED TILL THE DISPOSAL OF THE APPLICATION FOR C ONSTITUTION OF SPECIAL BENCH OR ALTERNATIVELY HE CONTENDED THAT THE APPEAL MAY BE F IXED FOR HEARING. 5. ON THE CONTRARY, LD. DEPARTMENTAL REPRESENTATIVE S OPPOSED THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE, THE FIRST STAY WAS GRANTED V IDE ORDER DATED 13 TH FEB. 2015. SINCE THEN THE STAY IS BEING EXTENDED FOR ONE REASO N OR THE OTHER VIDE ORDER DATED 9 TH NOV. 2016, THE STAY WAS EXTENDING TILL 30 TH APRIL 2017 ON THE GROUND THAT VIDE LETTER DATED 13 TH OCT., 2016 THE ASSESSEE HAD REQUESTED FOR CONSTIT UTION OF SPECIAL BENCH TO DECIDE THE ISSUE BY THE MAJORITY VIEW. IT IS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SPECIAL BENCH HAS NOT BEEN CONSTI TUTED AS THE ASSESSEE HAS NOT 3 SA NOS. 06 & 07/JP/2017 VODAFONE MOBILE SERVICE LTD. , JAIPUR. RECEIVED ANY NOTICE OF HEARING ON THE LAST DATE OF HEARING THAT IS ON 12 TH MAY, 2017, THE LD. COUNSEL FOR THE ASSESSEE WAS DIRECTED TO FI ND OUT THE STATUS OF THE APPLICATION FOR RENDERING THE ISSUE TO THE SPECIAL BENCH. LD. COUNSEL FOR THE ASSESSEE COULD NOT GIVE THE CURRENT STATUS EXCEPT T HAT STATING NO NOTICE OF HEARING IS RECEIVED. SINCE, VERY LONG PERIOD HAS BEEN ELASPSE D WHEN THE FIRST STAY WAS GRANTED VIDE ORDER DATED 13 TH FEB. 2015, THE OUTSTANDING DEMAND CANNOT BE KEPT S TAYED THEREFORE, THE REQUEST OF THE LD. COUSEL FOR THE AS SESSEE FOR EXTENSION OF THE STAY IS REJECTED. HOWEVER, KEEPING IN VIEW, THE FACTS THAT SUBSTANTIAL AMOUNT HAS BEEN DEPOSITED BY THE ASSESSEE. FURTHER NO FINANCIAL ST RESS IS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE. WE DEEM IT PROPER TO GRA NT INSTALLMENT FOR PAYMENT OF THE OUTSTANDING DEMANDS I.E. 10 LAKHS PER MONTH STA RTING FROM 1 ST AUGUST, 2017 IN THE MEANTIME, THE REVENUE SHALL NOT TAKE ANY COERCI VE STEPS FOR RECOVERING OF DEMAND. 7. NOW, WE TAKE UP STAY APPLICATION NO. 07/JP/2017 (ARISING OUT OF ITA NO. 69/JP/2015). 7.1. BOTH THE PARTIES HAVE ADOPTED THE SAME ARGUMEN T; THE FACTS ARE IDENTICAL IN SA NO. 06/JP/2017. THIS APPEAL IS ALSO DECIDED IN T HE TERMS INDICATED IN SA NO. 06/JP/2017. 8. IN THE RESULT, BOTH THE APPLICATIONS ARE DISPOSE D OF. ORDER PRONOUNCED IN THE OPEN COURT ON 30/5/2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 30/05/2017. 4 SA NOS. 06 & 07/JP/2017 VODAFONE MOBILE SERVICE LTD. , JAIPUR. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- VODAFONE MOBILE SERVICES LTD., J AIPUR. 2. THE RESPONDENT THE ITO, TDS-2, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (SA NOS. 06 & 07/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 SA NOS. 06 & 07/JP/2017 VODAFONE MOBILE SERVICE LTD. , JAIPUR.