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M/s Andrew Telecommunications India Pvt. Ltd., Versus Principal Commissioner of Income Tax, Panaji, Goa

2016 (12) TMI 1286 - BOMBAY HIGH COURT

Stay of demand - Held that:- It was not disputed during the course of the arguments at bar that such a demand can be adjusted against the pending refund for the previous year, if any. The dispute is really about the extent of such adjustment. While it is claimed by the respondents that the entire amount of the refund shall be adjusted as against the impugned demand as a condition for stay, on behalf of the petitioner, it is contended that 15% of the impugned demand may be adjusted, out of the to .....

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The impugned communication/order, rejecting the application for stay, is set aside. There shall be interim stay of the impugned demand, pending disposal of the appeal before the CIT (A), on condition of an amount of ₹ 2,53,61,907/-, from out of the refund for the Assessment Years 2006-07 and 2007-08, being retained towards 15% of the amount as stipulated in O.M. Dated 29.02.2016. - WRIT PETITION NO. 1021 OF 2016 - Dated:- 13-12-2016 - SMT. R.P. SONDURBALDOTA & C.V. BHADANG, JJ. Shri J .....

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petitioner filed a return for the Assessment Year 2012-13, declaring loss of ₹ 10,23,16,807/-. It appears that the case of the petitioner was selected for scrutiny and as per the final assessment order dated 06.05.2016, the petitioner was served with a notice of demand for ₹ 16,90,79,380/-. In short, against a returned loss of ₹ 10,23,16,807/-, the respondents have raised a demand of ₹ 16,90,79,380/-. Undisputedly, the petitioner has challenged the said assessment in an .....

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tions dated 29.02.2016 issued by Central Board of Direct Taxes (CBDT). On 13.07.2016, the petitioner applied to respondent no. 1, seeking an unconditional stay on the demand as made. Respondent no. 1 directed respondent no. 2, to adjust the refund, which is due to the petitioner, for the Assessment Years 2006-07 and 2007-08 against the aforesaid demand. The petitioner sought for personal hearing, which was not acceded to. On 04.10.2016, the respondent no. 1 has rejected the application for stay, .....

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under para 4(B) of the said O.M. The learned Senior Counsel was at pains to point out that as per para 4(E)(iii) of the O.M., 15% of the amount can be adjusted against any pending refund. The learned Senior Counsel has pointed out that admittedly, a total refund of ₹ 12,25,45,340/- is due and payable to the petitioner for the Assessment Years 2006-07 and 2007-08. It is submitted that the impugned demand is ex-facie, illegal and unwarranted and thus, it is a case for grant of an unconditio .....

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h Court in the case of M/s Jindal Steel and Power Limited Vs. The Principal Commissioner of Income Tax (Civil Writ Petition No. 13146/2016 decided on 21.09.2016). 7. On the contrary, it is submitted by Ms. Asha Desai, the learned Counsel for the respondents that the impugned orders passed by the competent authorities, refusing to grant stay, are passed by the respondents, what she calls to be on the administrative side. It is submitted that the petitioner has filed an appeal, which is pending be .....

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year and has nothing to do with the impugned demand for the Assessment Year 2012-13. 8. We have carefully considered the rival circumstances and the submissions made. The impugned demand is for ₹ 16,90,79,380/-. Admittedly, the petitioner has challenged the said demand in an appeal, which is pending before the CIT (A). According to the respondents, the impugned order refusing to grant stay is passed on the administrative side. Be that as it may, the O.M. dated 29.02.2016, to the extent rel .....

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uted demand, unless the case falls in the category discussed in para (B) hereunder: (B) ….. (C) ….. (D) ….. (E) In granting stay, the Assessing Officer may impose such conditions as he may think fit. He may, inter alia,: (i) require an undertaking from the assessee that he will cooperate in the early disposal of appeal failing which the stay order will be cancelled; (ii) reserve the right to review the order passed after expiry of reasonable period (say 6 months) or if the a .....

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sing officer shall grant stay of demand, till the disposal of the first appeal on payment of 15% of the disputed demand, unless the case falls in category discussed in para 4(B). It is not in dispute that the present case would not fall in the category as provided in para 4(B) of the O.M. and thus, would be governed by para 4(A). 10. It is further not in dispute that a refund for ₹ 12,25,45,340/- is pending before the Principal CIT for the Assessment Years 2006-07 and 2007-08. It is furthe .....

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