TMI Blog2014 (11) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of the demand - the demand which has been raised on the petitioner under the 1st head shall remain stayed till the disposal of the appeal by the CIT(A). Disallowance of interest on amount borrowed and advances to Sister company for development of group business – Held that:- In assessee’s own case for the earlier assessment year wherein the assessee had filed appeal before the CIT(A) and pleaded for deletion of the disallowance by relying upon SA BUILDERS LTD. Versus COMMISSIONER OF INCOME-TAX [2006 (12) TMI 82 - SUPREME COURT] - the assessee has established prima facie case - Though it is stated by the learned Standing Counsel for the Revenue that it is for the AY 2009-2010, yet legal principles, which were adopted by CIT (A) as on d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year 2011-2012. 2. Though elaborate submissions were made by the learned counsel for the petitioner and the learned counsel for the Revenue, all the submissions need not be referred to, nor the factual contention placed before this Court in the form of affidavit and oral submissions be narrated in toto for disposal of this writ petition. 3. The 1st respondent passed an order of assessment under Section 143(3) of the Income Tax Act dated 28.03.2014 for the assessment year 2011-2012 on the following terms: Add: (1) Addition on account of disallowance u/s 40(a)(ia) of Income Tax Act on disallowance of payment made to M/s.Jaldhi Overseas Pte.Ltd. without deducting tax at source Rs.51,56,53,993/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and intent for granting interim relief is to preserve status quo and to ensure that the appeal remedy availed by the petitioner, should not be a futile exercise. However, in revenue matters, the said principle may not be fully applied, but the principles shall be broad guidelines, under which the application for interim relief is to be considered. In fact, the CBDT has issued instructions on 02.12.1993 vide Instruction No.1914, wherein guidelines have been issued for staying demand. One of the illustrative situations pointed out in the Circular is that if the demand in dispute relates to issues that have been decided in assessee's favour by an appellate authority or Court earlier, then that would have been the sufficient reason to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, it cannot be made applicable. This submission on behalf of the Revenue was rejected by the Hon'ble Division Bench, pointing out that the order passed in the revision is to be read as a whole and a careful scrutiny of the said order would disclose that the Revisional Authority has arrived at a categorical finding that the transaction between the assessee and non-resident company would be taxable only in Singapore and not in India. Accordingly, the Hon'ble Division Bench allowed the writ petition insofar it related to disallownace under Section 49(a)(i) for alleged non-deduction of tax at source in terms of Section 195(1) of the Income Tax Act. The said order pertained to the assessment year 2010-2011. iii) Subsequently, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year, namely, 2009-2010, wherein the petitioner had filed appeal before the Commissioner of Income Tax (Appeals) and pleaded for deletion of the disallowance by relying upon the judgment of the Hon'ble Supreme Court in the case of M/s.SA Builders (158 Taxmann 74 SC). The Commissioner of Income Tax (Appeals) by order dated 24.12.2012 accepted the submission made by the petitioner therein and deleted the disallowance. Against the said order of CIT(Appeals), an appeal has been preferred before the Income Tax Appellate Tribunal. It is stated that the said appeal is pending and no interim order has been granted by the Tribunal in favour of the Revenue. ii) Under such circumstances, this Court is of the view that with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention, but only proceeded to direct the petitioner to pay tax due immediately. The 1st respondent, while considering the stay petition filed by the petitioner pending disposal of appeal before the Commissioner of Income Tax (Appeals) against the assessment order is acting in a difference capacity, i.e., the 1st respondent should dispassionately examine the stay petition to find out as to whether the petitioner is able to prove prima facie case for staying the demand passed by the Assessing Officer or the Officer in the same cadre. Therefore, the scheme of the Act reposes such duty on the Assessing Officer, while examining the stay petition, filed by the assessee requesting for stay of the demand till the appeal against the order of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
