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M/s Perfetti Van Melle India Private Limited Versus Deputy Commissioner of Income Tax and another

2015 (12) TMI 116 - PUNJAB AND HARYANA HIGH COURT

Stay application - recovery proceedings - Held that:- It is true that while considering an application for stay, it is neither expedient nor appropriate for the Court to initiate a detailed enquiry to find out whether the stand of the assessee is on solid ground, because expression of a final opinion on the merits at that stage, without examining the entire material and affording full opportunity of hearing, is likely to cause prejudice to either side. But, at the same time, the Court is require .....

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stent. Needless to point out that the power of stay by the Court is not likely to be exercised in a routine manner 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 court 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 court is satisfied that the entire purpose of the appeal will be frus .....

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pears to be no error in the impugned order passed by respondent No.2. Further, learned counsel for the petitioner has also not been able to show that the order is unjustified. Consequently, finding no merit in the petition, the same is hereby dismissed. - CWP No.21769 of 2015 - Dated:- 17-11-2015 - MR. AJAY KUMAR MITTAL AND MR. RAMENDRA JAIN, JJ. For The Appellant : Mr. Nageshwara Rao, Advocate with Mr. Sandeep Goyal, Advocate For The Revenue : Mr. Tejinder K.Joshi, Advocate Ajay Kumar Mittal, J .....

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n the petition may be noticed. The petitioner is a company duly incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of manufacturing and sale of confectionary products from its factories situated at Tamil Nadu, Haryana and Uttarakhand. For the assessment year 2008-09 i.e. the financial year 2007-08, the petitioner filed its return of income on 29.9.2008 declaring income of ₹ 13,00,68,080/-. The case was selected for scrutiny and notices under Section .....

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ns before the TPO. The TPO passed order dated 5.10.2011, Annexure P.1 determining the Arm's Length price of the international transactions at ₹ 117,99,66,691/- and directed respondent No.1 to make an adjustment to the total income of the petitioner by ₹ 117,99,66,691/-. On receipt of the order dated 5.10.2011 passed by the TPO, respondent No.1 passed draft assessment order dated 27.12.2011 re-computing the total income of the petitioner at ₹ 131,00,34,771/- and consequently .....

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,771/- and created demand of ₹ 64,53,77,009/-. The petitioner filed appeal before the Tribunal being ITA No.5897/Del/2012. It also filed an application for staying the outstanding demand of ₹ 64,53,77,009/-. In the meantime, same issue regarding transfer pricing adjustment in relation to advertisement, marketing and sales promotion came before the Tribunal in the case of M/s L.G.Electronics India Pvt. Limited vs. The Assistant Commissioner of Income Tax. The President of the Tribunal .....

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on 28.1.2013 In the meantime, on 23.1.2013, the Special Bench of the Tribunal passed judgment in the case of M/s L.G.Electronics India Pvt. Limited. It was held by majority that the adjustment in relation to Advertisement and Market Promotion (AMP) expenses and earning a mark up from associated enterprise was permissible. Consequently, the matter in that case was restored back to the TPO for de novo adjudication on the basis of guidelines given in the order. Thereafter, the petitioner filed writ .....

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ciding the same in view of its decision in M/s LG Electronics' case (supra). Aggrieved thereby, the petitioner filed appeal before this court which is still pending. In the meantime on 16.3.2015, the Delhi High Court passed order on the issue of advertising and marketing expenses. It rejected the application of 'Bright Line Test' as a method to compute the adjustment related to AMP. Respondent No.1 passed revised final assessment order dated 30.3.2015, Annexure P.4 creating a demand .....

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ile disposing of the application vide order dated 27.4.2015, Annexure P.5 directed the petitioner to file an appeal and application of interim relief before respondent No.2. This court also directed respondent No.1 not to take any steps for recovery of demand for a period of two weeks after the decision on the stay application before respondent No.2. Accordingly, the petitioner filed the appeal and stay application before respondent No.2. In the rectification application filed by the petitioner, .....

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nnexure P.8 directing the petitioner to pay the entire balance outstanding demand of ₹ 13,96,37,398/- in following equalized instalments as under:- Ist instalment ₹ 3,50,00,000/- to be paid on 15.10.2015 2nd instalment ₹ 3,50,00,000/- to be paid on 15.11.2015 3rd instalment ₹ 3,50,00,000/- to be paid on 15.12.2015 4th instalment Balance outstanding demand to be paid on 15.1.2016. Hence the instant writ petition. 3. In the reply filed on behalf of the respondents in court .....

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branch of its associated enterprise. No prejudice would be caused to the petitioner in case of depositing the outstanding tax demand. On these premises, prayer for dismissal of the writ petition has been made. 4. We have heard learned counsel for the parties. 5. A perusal of the impugned order dated 28.9.2015, Annexure P.8 shows that for the assessment year 2008-09, the petitioner filed its return of Income on 29.9.2008 declaring income of ₹ 13,00,68,080/-. After scrutiny, the Assessing O .....

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,691/- proposed by TPO. The petitioner challenged the said order before the Tribunal. Vide order dated 18.10.2013, the Tribunal directed the Assessing Officer to apply the decision of Special Bench in L.G.Electronics India Pvt. Limited's case (supra). Consequently, the Assessing Officer created a demand of ₹ 29,76,66,020/-. The petitioner challenged the said order before this Court by filing appeal. Vide order dated 27.4.2015, this court directed the respondents not to take any coerciv .....

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er at once or in the three equal installments of ₹ 3,50,00,000/- within the period starting from 15.10.2015 to 15.12.2015 and the balance outstanding demand to be paid on 15.1.2016. The order passed by the CIT(A) appears to be just and reasonable. The petitioner was given sufficient time to pay the outstanding demand. 6. It is true that while considering an application for stay, it is neither expedient nor appropriate for the Court to initiate a detailed enquiry to find out whether the sta .....

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