2023 (9) TMI 694 - DELHI HIGH COURT

Recovery against the crystallized tax liability - stay on the demand pending the decision in the appeal will have to factor in TDS and TCS - As argued respondents/revenue could have recovered only 20% of the crystallized demand - HELD THAT:- The order passed under the Act is the order framing the assessment i.e., the order dated 09.12.2022. As per the said order, the crystallized tax liability of the petitioner/assessee was Rs. 44,10,05,569/-.

Therefore, 20% can only be calculated against the said amount and not against the scaled-down amount i.e., Rs. 33,05,82,936/-; which is a figure arrived at, after giving credit to the petitioner/assessee in respect of tax deposited by the third parties. In other words, contrary to the contention of respondents/revenue, the amount that an assessee would need to deposit for the purposes of obtaining stay on the demand pending the decision in the appeal will have to factor in TDS and TCS.

Given the foregoing reasons, we are inclined to direct the respondents/revenue to refund the amount, which is in excess of 20% of Rs. 44,10,05,569/- after carrying out the requisite verifications. The amounts already collected by TDS and TCS will have to be adjusted against the amount arrived at by applying the rate of 20% against tax crystallised as per the assessment order.

The amount payable, if any, will be remitted to the petitioner/assessee within the next four (4) weeks.