TMI Blog2019 (7) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... ternative contentions of the assessee for protecting it from the recovery of the demand till the disposal of the application by Pr.CIT by 10 days thereafter, because, the ld.CIT-DR was categorically stated that except adjusting the refund, Revenue is not going to take any other steps. The assessee has agreed in the past of such conditional order. Therefore, this stay petition is dismissed. - Stay Petition No.104/Ahd/2019 IN ITA.No.360/Ahd/2017 - - - Dated:- 5-7-2019 - Shri Rajpal Yadav, Judicial Member And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri S.N.Soparkar, AR For the Revenue : Shri Mahesh Shah, CIT-DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER : Present stay application is directed at the instance of the assessee for grant of ad-interim stay of outstanding demand amounting to ₹ 1443.37 crores. 2. It emerges out from the record that the assessee has filed its return of income electronically on 30.11.2012 declaring total loss at ₹ 92,56,64,304/- under normal provision and book loss of ₹ 2237,95,94,860/- under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n revised by letter dtd.31.7.2017. Copies both these letters are placed on page no.22 to 24 of the paper book. On the strength of this circular he contended that this is the first appeal before the Tribunal, the assessee already paid 27% of the tax, and therefore, recovery of the balance be stayed. He further contended that Hon ble Gujarat High Court in the case of Jagdh Gandabhai Shah Vs. PCIT, 247 Taxman 414 has held that there is no precondition for deposit of 15% of disputed demand in order to seek stay of demand. ii) That the assessee has filed a note along with its stay petition demonstrating documents leading to this demand, how prima facie the demand is not sustainable. In this note, the assessee has tabulated certain additions made by the AO, and how these additions are not sustainable on the strength of earlier years order. Such details have been given in a note annexed at page no.33 of the paper book filed along with stay petition, and the details reads as under: Ground No. Ground for disallowance/additi on Amount (in Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ground No. Ground for disallowance/addition Amount (in Rs.) Remarks 1. Contribution to Ranbaxy Community Healthcare Society and Ranbaxy Science Foundation 2,83,60,000 Covered by the decision of Delhi High court in the case of appellant for AY 1997-98 and also by decision of the ITAT in the case of appellant for AY 08-09 2. Claim of weighted deduction on assets given to R D employees u/s.32(2AB) 2,50,48,153 Covered by the decision of Delhi High Court in the case of appellant for AY 1998-99 and also by decision of the ITAT in the case of appellant for AY 99-00, 02- 03 to 05-06 AY 08-09 3. Deduction of ESOP expenses 12,72,94,945 Covered by the decision of Special Bench of ITAT in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble ITAT, Ahmedabad is not received till 28.02.2018, the matter of stay in this case will be reviewed in the first week of March, 2018 and the Department shall consider the payment of outstanding demand, including fixing of instalments. c. Any refund subsequently arising to the assessee or the amalgamating company considering the 'A' has gone through a merger w.e.f 01.04.2014 shall be adjusted against the aforesaid outstanding demand in the case of the assessee. 5. The assessee has never felt aggrieved with the order of the CIT passed two years back. It has filed an application for extension of this direction. For buttressing his contention, he took us through a letter dated 21.3.2018 on page no.6 of the paper book filed along with Stay Petition. In this application, the assessee sought extension of the stay of demand already granted. He contended that Revenue is not going to adopt any coercive action in recovery of demand; for example, putting attachment of bank accounts; putting any asset in sale etc. It is just contemplating adjustment of refund from earlier years or subsequent years. The earlier stay was granted subject to this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going to be caused to the applicants which will not be compensated in terms of money. Other hardships which if weigh in the light of the circumstances, and demonstrate that balance of convenience, equity and fair play would be in favour of the applicant. It is pertinent to observe that a demand raised by the AO is akin to a money decree and money decrees are not to be stayed by the higher appellate authorities because in case money is recovered it can be refunded with interest. It should be stayed only when it is demonstrated that recovery of money would cause such irreparable loss which will not be compensated in terms of money; for example, if recovery of the amount close down business of the assessee or recovery of the amount by way of auction or other coercive means will destroy physical structure of the company and uproot it from its business premises, then outstanding ought to be stayed. We have weighed all these circumstances demonstrated before us. We find that the ld.Commissioner in its order dated 21.8.2017 examined the facts and stayed the outstanding demand with a condition that if any refund subsequently will arise then it will be adjusted against the aforesaid outstan ..... 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