M/s Bhavani Erectors Private Limited , Raichur V. Assistant Commissioner of Income Tax Circle-1 , Raichur

SA 92/BANG/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6142 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(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: 2015-2016
• Appeal Filed On: 01-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R. SURESH KUMAR
• Section: 22; 20

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.92/BANG/2019 (IN ITA NO. 76 / BANG/201 9 ) ASSESSMENT YEAR : 20 1 5 - 1 6 M/S. BHAVANI ERECTORS PRIVATE LTD., P B NO: 002;PLOT NO. 103 & 104, SHRI SUGURESWAR NAGAR, SHAKTHI NAGAR,RAICHUR584170. KARNATAKA. PAN: AACCB0924H VS. THE ACIT, CIRCLE 1, RAICHUR. APPELLANT RESPONDENT ASSESSEE BY : SHRI R. SURESH KUMAR, CA 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 DISPUTED OUTSTANDING DEMAND OF RS. 76,36,790/- FOR ASSESSMENT YEAR 2015-16. 2. IN COURSE OF HEARING OF THE STAY PETITION, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THIS STAY PETITION HAS BEEN FILED BY THE ASSESSEE ON 25.02.2019 AND BY THE TIME THE STAY PETITION WAS PREPARED AND SIGNED BY THE ASSESSEE, PAYMENT OF RS. 35 LAKHS WAS MADE BY THE ASSESSEE AGAINST TOTAL DISPUTED OUTSTANDING DEMAND OF RS. 1,11,36,790/- INCLUDING INTEREST OF RS. 28,64,053/-. HE FURTHER SUBMITTED THAT AFTER THAT, THE ASSESSEE HAS MADE FURTHER PAYMENT OF RS. 10 LAKHS ON 25.02.2019 AND THEREAFTER, ON 02.03.2019, THE DEPARTMENT HAS ADJUSTED REFUND OF RS. 23,92,720/- AND IN THIS MANNER, TOTAL PAYMENT MADE BY THE ASSESSEE IS OF RS. 68,92,720/- AGAINST DISPUTED OUTSTANDING DEMAND EXCLUDING INTEREST OF RS. 82,72,737/-. IT WAS SUBMITTED THAT THE ASSESSEE HAS A VERY GOOD PRIMA FACIE CASE AND HENCE, STAY SHOULD BE GRANTED BECAUSE THE PAYMENT MADE BY THE ASSESSEE IS ABOUT 83% OF DISPUTED OUTSTANDING DEMAND EXCLUDING INTEREST AND AROUND 62% OF TOTAL DISPUTED DEMAND INCLUDING INTEREST. THE LD. DR OF REVENUE STRONGLY OPPOSED GRANTING OF STAY. S.P. NO. 92/BANG/2019 (IN ITA NO. 76/BANG/2019) PAGE 2 OF 2 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE DEMAND HAS ARISEN ON ACCOUNT OF ADDITION MADE BY THE AO BY ESTIMATING THE INCOME OF THE ASSESSEE AT 8% ON THE TOTAL TURNOVER OF THE ASSESSEE OF RS. 2,23,38,60,367/- AND THE SAME WAS WORKED OUT AT RS. 17,87,08,830/- AS AGAINST THE INCOME DECLARED BY THE ASSESSEE IN RETURN OF INCOME AT RS. 15,43,69,180/-. HENCE IN OUR CONSIDERED OPINION PARTICULARLY IN VIEW OF THIS FACT THAT THE PAYMENT ALREADY MADE BY THE ASSESSEE IS MORE THAN 80% OF TOTAL DISPUTED DEMAND EXCLUDING INTEREST, THIS IS A FIT CASE FOR GRANTING STAY. HENCE WE GRANT STAY FOR THE PERIOD OF THREE MONTHS FROM THE DATE OF THIS ORDER OR TILL THE DISPOSAL OF THE APPEAL, WHICHEVER IS EARLIER. THE HEARING OF THIS APPEAL IS FIXED ON 09.07.2019. BUT IN VIEW OF STAY GRANTED BY US, THE HEARING IS PREPONED TO 22.04.2019. SINCE THE DATE OF HEARING IS PRONOUNCED IN THE OPEN COURT, NO SEPARATE NOTICE OF HEARING IS REQUIRED TO BE ISSUED. 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.