TMI Blog2011 (10) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... red opinion that it is not a fit case for grant of stay of demand - ITA No. 2276 (Mum.) of 2011 - - - Dated:- 5-10-2011 - Shri R.S. Syal and R.K. Panda, and Shri V. Durga Rao and Shri D.K. Agarwal, JJ. Represented by: Shri Arvind Sonde for the Applicant. Shri G.P. Trivedi for the Respondent. Shri R.S. Syal, By means of the present stay application the assessee seeks to get the demand stayed amounting to Rs.840,61,70,960 inclusive of interest u/s 234B, 234D, 220(2) for the assessment year 2007-2008 till the final disposal of the appeal. 2. It is relevant to note that the assessee's stay application was disposed off by the Tribunal vide its order dated 16th September, 2011 rejecting the grant of stay of demand but accepting the plea for early hearing. Thereafter, the assessee approached the Hon'ble High court against this order. Vide judgment dated 21.09.2011, the Hon'ble Bombay High Court has set aside the aforesaid order of the Tribunal with a direction to consider the stay application afresh. 3. Before the Tribunal in the original round of stay proceedings, the assessee relied on the decision of the Jaipur Bench in Jaipur Vidyut Vitran Nigam Ltd. v. Dy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an application for stay. In these circumstances, we are of the view that the ends of justice would warrant that there should be an order of remand so as to enable the Tribunal to pass a fresh order on the application for stay." 4. From the above direction of the Hon'ble High Court it is clear that this Bench has been required to decide the stay afresh and in doing so to more specifically record finding on the prima facie applicability of the order in Jaipur Vidyut Vitran Nigam Ltd.'s case (supra) to the facts of the instant case. 5. The learned Counsel for the assessee took us through the relevant parts of the order in Jaipur Vidyut Vitran Nigam Ltd. (supra) by contending that the facts and circumstances in that case were identical to those under consideration. He read various parts of the order and focused his submission on the nature of work done in that case necessitating the making of payment, as recorded in para 3.2 of that order as under:- "The AO noted that assessee is purchasing power from the generation company and selling it to consumers. The power from the generation point to the consumers is transmitted through the transmission network of RVPN." 6. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The appellant's contentions were thus erroneous." 8. From the assessee's BPTA agreement with MSETCL and PGCIL, it is noticed that the services rendered by the payees not only included the services in connection with transmission of the power but also several other distinct services such as maintenance of metering system, noting down meter reading, sealing and resealing of meters etc. etc. It is thus evident that the nature of services received by the assessee under BPTA are much more than those received in the case of Jaipur Vidyut Vitran Nigam Ltd. (supra) which were confined only to purchasing power from the generation company and selling it to consumers through transmission network. This factual position, when brought to the notice of the ld. AR, could not be controverted. He chose to stuck to his stand that the services were similar to those in the case of Jaipur Vidyut Vitran Nigam Ltd. (supra) without pointing out that the additional services as noted above were present in the case of Jaipur Vidyut Vitran Nigam Ltd. (supra). He read major part of the order in Jaipur Vidyut Vitran's case(supra) but failed to prove that such additional services were also there in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , first appearance] means : At first appearance; on the face of things. Prima facie case has been explained in this dictionary as 'a case that has been supported by sufficient evidence for it to be taken as proved in the absence of adequate evidence to the contrary.' 11. From the above it can be seen that a case can be considered as prima facie proved when there is no adequate evidence to the contrary. When we advert to the facts of the instant case, it is noticed that the decision of Jaipur Vidyut Vitran Nigam Ltd.'s case (supra) is based on facts which are not wholly similar to those prevailing in the present case. The conduct of the assessee in starting deducting tax at source on wheeling and transmission charges from 2009-2010 also prima facie indicates that such transaction have been perceived by the assessee to be liable for deduction of tax at source. Further the most important factor which cannot be ignored is that even the payee is also treating the payment as liable for deduction of tax at source and in this process, it not only applied but also obtained certificate from ACIT (TDS) Circle, u/s 197(1) for getting tax deducted at source at a lower rate. No other case in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself is not clear as to whether deduction of tax at source is required u/s 194C or 194J or 194-I and as such disallowance u/s 40(a)(ia) was not called for. We are unable to sustain this submission for the reason that section 40(a)(ia) is attracted when the assessee fails to deduct tax at source under Chapter XVII-B on the payments specifically included within the purview of this provision. It is interesting to note that whether it is failure u/s 194C or 194J or 194-I, as canvassed by the ld. AR, all such situations fall within the ambit of section 40(a)(ia) as these three types of payments have been specifically included in it. As such we are not convinced with the submission advanced on behalf of the assessee in this regard. The further argument that since the payee subsequently paid the tax on its income inclusive of the said receipts from the assessee and hence no disallowance can be made under this provision, is also devoid of merits. Here it is relevant to note that failure of the assessee to deduct tax at source or to deposit such tax after deducting within the prescribed time entails several consequences such as applicability of sections 201, 40(a)(ia) and also penalty u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. It will only be when a strong prima facie case is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions, and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal." [Emphasis supplied] 18. We are also reminded of the judgment of the Hon'ble Supreme Court in Asstt. Collector of Central Excise v. Dunlop India Ltd. [1985] 154 ITR 172, in which Their Lordships deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other relevant considerations. In this case it has been held as under :- "All this is not to say that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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