TMI Blog2011 (1) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... al demand created was Rs. 2,72,65,238 which included interest of Rs. 61,70,149 under section 234B of the Income-tax Act. The assessee paid a total sum of Rs. 98,76,636 against the above demand and the balance outstanding is Rs. 1,73,88,602 which includes interest of Rs. 61,70,149. The Learned AR for the assessee argued that while making TP adjustments the assessee had applied Resale Price Method (RPM) to determine the arm's length price and on this basis no adjustment was required. The TPO however though he held that RPM was the most appropriate method observed that the assessee had used expected gross profit margin while computing its gross margin which was nothing but a notional figure. He therefore adopted Transactional net margin method ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee had not filed the financial accounts of the comparable cases as was clear from letter dated 20-10-2010 of the Addl.Commissioner (TP) written to the Assessing Officer a copy of which has been placed on record. As regards the research and development expenses, it was submitted that the Assessing Officer in para 3.6 of the order had given a clear finding that the nature of the business of the assessee was processing and marketing of vegetable seeds and the assessee was neither producing nor developing any kind of seeds and therefore expenditure did not relate to the business of the assessee. It was accordingly urged that the stay petition of the assessee should be rejected. 3. We have perused the records and considered the rival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. In view of the above factual position, we are not able to see any prima facie case in favour of the assessee. A view can be taken only on detailed examination of the case and after proper hearing. However even if the assessee may have succeeded to show some prima facie case, the recovery cannot be stayed only on the ground of prima facie case as held by the Hon'ble Supreme Court in case of Assistant Collector of Central Excise v. Dunlop India Ltd. [1985] 154 ITR 172. The Hon'ble Supreme Court in the said case have held that only prima facie case was not enough, and that while passing interim order balance of convenience, public interest and all other relevant factors should be seen. In the present case the assessee has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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