TMI Blog2013 (5) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... 28/- and as against this, an amount of ₹ 13,36,32,605/- is only on account of enhancement made of ₹ 30.44 crores which, prima facie, does not appear to be backed by law - We feel that the petitioner has an excellent prima facie case and the Tribunal ought to have granted stay of the demand raised by the revenue. We set aside the impugned order passed by the Tribunal to the extent of balance payments other than the payment of ₹ 50 lacs already made by the petitioner - the rest of the demand is stayed till the Tribunal disposes of the appeal - The writ petition stands disposed of - Any observations made in this order are only prima facie observations and will not be taken into account by the Tribunal while considering and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount demanded by the respondents during the pendency of the appeal before it. The Tribunal has merely granted instalments and that, according to the petitioner, would cause great hardship to the petitioner particularly as the petitioner has an excellent prima facie case. 4. Initially, the petitioner filed a loss return in respect of the assessment year 2007-08 disclosing a loss of Rs.5,80,21,210/-. In the year in question, the petitioner had acquired the running business of design and consultancy in the oil and gas sector from Triune Projects Private Limited. The said acquisition was by way of a slump sale and the total amount paid therefor was approximately Rs.45.68 crores. The said price of Rs.45.68 crores was divisible into two categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the computation given by the learned counsel for the petitioner, the entire demand sought to be raised pursuant to the assessment under Section 143(3) by the Assessing Officer, stood cleared by way of adjustment of the refunds due and, in fact, an amount of Rs.1,10,848/- was shown to be refundable to the assessee in respect of the assessment year 2007-08. 7. The petitioner, being aggrieved by the disallowance of depreciation on intangibles to the extent of Rs.10,14,68,882/-, went up in appeal before the Commissioner of Income Tax (Appeals). The latter maintained the disallowance and not only that, he added an amount of Rs. 30,44,06,647/- under Section 40A(2) of the said Act. This sum of approximately Rs.30.44 crores is the differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, he disallowed the depreciation on the intangible assets and allowed the major portion of depreciation on tangible assets. Thus, according to the learned counsel for the petitioner, this stand of the Commissioner of Income Tax (Appeals) was inconsistent with the view taken by him that the transaction was a sham transaction. If on the one hand, he disallowed depreciation on intangibles, he could not have, on the other, allowed depreciation on tangibles. Prima facie, we also agree with this submission made by the learned counsel for the petitioner. 10. Apart from the aforesaid disallowances, the Commissioner of Income Tax (Appeals) also made certain other disallowances. The result being that the total disallowance made by the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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