M/s KBACE Technologies Private Limited , Chennai V. The Deputy Commissioner of Income Tax Circle-4(1)(1), Bangalore

SA 78/BANG/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6206 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 25-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K R NARAYANA
• Assessee Lawyers: SANDEEP S KARHAIL
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR,JUDICIAL MEMBER S.P. NO.78/BANG/2019 (IN IT (TP) A NO. 233 / BANG/201 8 ) ASSESSMENT YEAR : 20 1 3 - 1 4 M/S. KBACE TECHNOLOGIES PRIVATE LIMITED, 6 TH FLOOR, NEW NO. 165, OLD NO. 110, MENON ETERNITY BUILDING, ST. MARYS ROAD, ALWARPET, CHENNAI 600 018. PAN: AACCK3468K VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 4 (1) (1), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI SANDEEP S. KARHAIL, ADVOCATE REVENUE BY : SHRI K.R. NARAYANA, JCIT (DR) DATE OF HEARING : 22 . 0 3 .201 9 DATE OF PRONOUNCEMENT : 22 . 0 3 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER; THIS STAY PETITION IS FILED BY THE ASSESSEE SEEKING STAY OF THE DISPUTED OUTSTANDING DEMAND OF RS. 17,48,580/- FOR ASSESSMENT YEAR 2013-14. 2. IN COURSE OF HEARING OF THE STAY PETITION, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT AS PER THE ASSESSMENT ORDER COPY OF WHICH IS AVAILABLE ON PAGES 68 TO 72 OF THE STAY PETITION MEMO, THE OUTSTANDING DISPUTED DEMAND OF RS. 35,48,580/- IS INCLUDING INTEREST U/S. 234B OF RS. 12,59,170/- AND HENCE, THE DISPUTED OUTSTANDING DEMAND EXCLUDING INTEREST IS ONLY RS. 22,89,410/-. HE FURTHER SUBMITTED THAT THE ASSESSEE HAS ALREADY MADE PAYMENT OF RS. 18 LAKHS AND HENCE, THE STAY SHOULD BE GRANTED TO THE ASSESSEE. IN REPLY, IT WAS SUBMITTED BY LD. DR OF REVENUE THAT EARLIER ALSO, A STAY PETITION WAS MOVED BY THE ASSESSEE AND IN ITS ORDER DATED 15.06.2018, AVAILABLE ON PAGES 117 TO 118 OF THE STAY PETITION MEMO IN S.P. NO. 110/BANG/2018 DATED 15.06.2018, STAY WAS GRANTED BY THE TRIBUNAL SUBJECT TO PAYMENT OF RS. 18 LAKHS BY THE ASSESSEE ON OR BEFORE 30.06.2018. HE S.P. NO. 78/BANG/2019 (IN IT(TP)A NO. 233/BANG/2018) PAGE 2 OF 3 SUBMITTED THAT IN SPITE OF THIS DIRECTION OF THE BENCH IN THE EARLIER STAY ORDER, THE ASSESSEE HAS NOT COMPLIED WITH THE DIRECTIONS AND THIS PAYMENT OF RS. 18 LAKHS WAS MADE BY THE ASSESSEE MUCH AFTERWARDS I.E. ON 06.02.2019, COPY OF CHALLAN AVAILABLE ON PAGE NO. 99 OF THE STAY PETITION MEMO. HE SUBMITTED THAT SINCE THE ASSESSEE HAS NOT COMPLIED WITH THE DIRECTIONS OF TRIBUNAL, NO STAY SHOULD BE GRANTED TO THE ASSESSEE. IN THE REJOINDER, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THIS ASPECT IS FULLY EXPLAINED BY ASSESSEE IN PARA NOS. 13 TO 16 OF THE STAY PETITION MEMO WHEREIN IT IS EXPLAINED BY THE ASSESSEE THAT AFTER RECEIPT OF THE TRIBUNAL ORDER IN S.P. NO. 110/BANG/2018 DATED 15.06.2018, THE ASSESSEE FILED A LETTER DATED 02.07.2018 BEFORE THE AO REQUESTING HIM TO ADJUST THE OUTSTANDING TAX DEMAND OF THIS ASSESSMENT YEAR 2013-14 TO THE EXTENT OF RS. 18 LAKHS AGAINST THE REFUND RECEIVABLE FOR ASSESSMENT YEAR 2017-18. HE ALSO SUBMITTED THAT THE APPEAL WAS HEARD IN FULL ON 04.09.2018 BUT THE ORDER WAS NOT PRONOUNCED AND IT WAS LATER RELEASED AND REFIXED FOR HEARING ON 23.04.2019. IT IS FURTHER SUBMITTED IN PARA 15 OF THE STAY PETITION MEMO THAT THE ASSESSEE HAS RECEIVED REFUND FOR ASSESSMENT YEAR 2017-18 IN JANUARY 2019 IN FULL WITHOUT ADJUSTMENT OF THE OUTSTANDING TAX DEMAND FOR PRESENT YEAR AND UPON RECEIPT OF THE ENTIRE REFUND FOR ASSESSMENT YEAR 2017-18 WITHOUT ADJUSTMENT OF TAX DEMAND OF ASSESSMENT YEAR 2013-14, THE ASSESSEE IMMEDIATELY MADE PAYMENT OF RS. 18 LAKHS IN FEBRUARY 2019 AS PER CHALLAN AVAILABLE ON PAGE NO. 99 OF THE STAY PETITION MEMO. HE SUBMITTED THAT UNDER THESE FACTS, STAY SHOULD BE GRANTED TO THE ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE FACTS ON RECORD. THIS IS TRUE THAT AS PER THE EARLIER S.P. ORDER IN S.P. NO. 110/BANG/2018 DATED 15.06.2018, STAY WAS GRANTED BY THE TRIBUNAL SUBJECT TO PAYMENT OF RS. 18 LAKHS ON OR BEFORE 30.06.2018. THIS IS ALSO TRUE THAT THE ASSESSEE DID NOT MAKE PAYMENT OF THIS AMOUNT OF RS. 18 LAKHS AS DIRECTED BY THE TRIBUNAL. CIRCUMSTANCES UNDER WHICH THE PAYMENT WAS NOT MADE HAS BEEN NARRATED BY THE ASSESSEE AS NOTED ABOVE AND THIS IS ALSO TRUE THAT IN FEBRUARY 2019, THE ASSESSEE HAS MADE PAYMENT OF AN AMOUNT OF RS. 18 LAKHS. BECAUSE OF THE NON-COMPLIANCE OF THE CONDITION OF THE STAY GRANTED BY THE TRIBUNAL TO THE ASSESSEE AS PER ITS EARLIER ORDER DATED 15.06.2018, THE ASSESSEE WAS S.P. NO. 78/BANG/2019 (IN IT(TP)A NO. 233/BANG/2018) PAGE 3 OF 3 NOT ENJOYING STAY GRANTED BY THE TRIBUNAL AS PER THAT ORDER BECAUSE ASSESSEE HAS NOT FULFILLED THE CONDITIONS OF THE STAY. BUT IN SPITE OF THIS, THE REVENUE COULD NOT COLLECT THE DEMAND FROM THE ASSESSEE FOR THE REASONS BEST KNOWN TO THE AO AND THE AO HAS GRANTED REFUND TO THE ASSESSEE FOR ASSESSMENT YEAR 2017-18 WITHOUT ADJUSTING THE DEMAND OF THE PRESENT YEAR AGAINST SUCH REFUND ALTHOUGH THE ASSESSEE HAS MADE REQUEST TO THE AO TO ADJUST THE DEMAND FOR THE PRESENT YEAR TO THE EXTENT OF RS. 18 LAKHS AGAINST REFUND FOR ASSESSMENT YEAR 2017-18. CONSIDERING ALL THESE FACTS, WE FEEL IT PROPER THAT STAY SHOULD BE GRANTED TO ASSESSEE AND HENCE, WE GRANT STAY TO THE ASSESSEE FOR A PERIOD OF THREE MONTHS FROM THE DATE OF THIS ORDER OR TILL THE DISPOSAL OF THE APPEAL WHICHEVER IS EARLIER. THE HEARING OF THE APPEAL IS ALREADY FIXED ON 23.04.2019. WE WANT TO MAKE IT CLEAR THAT THE ASSESSEE SHOULD NOT SEEK ANY ADJOURNMENT IN THE COURSE OF HEARING OF THE APPEAL WITHOUT JUSTIFIABLE REASONS AND IF THE ASSESSEE DOES SO, THEN THE STAY GRANTED BY THIS ORDER SHALL STAND VACATED AUTOMATICALLY. 4. IN THE RESULT, THE STAY PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ON CONCLUSION OF THE HEARING. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 22 ND MARCH, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.