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TMI Blog2017 (11) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... non-deduction of tax in respect of payment made by the assessee to Google Ireland Ltd., as the same was in the nature of royalty both under the provisions of domestic law as well as under DTAA between India and Ireland in the order passed by the TDS officer u/s 201(1) & 201(1A) of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] dated 22/01/2014. 2. Learned counsel for the assessee sought stay of demand on the following grounds: i. Appeal already posted for hearing for 23/11/2017 ii. Order of the Tribunal passed for earlier years is yet to be received by the assessee-company iii. It is proposed to make payment of Rs. 100 crores on or before this month end against demand raised in earlier years confirmed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal involving identical issue for earlier years against the assessee. Therefore, the principle that in absence of change of circumstances and the delay in disposal of appeal is not attributable to the assessee-company, stay should be extended, is not applicable to the present case. This would revert to the position of the first stay application. 4. In the original stay petition, this Tribunal granted stay of demand subject to payment of Rs. 60 lakhs considering the prima facie case in favour of the assessee-company. Now, in light of recent order of this Tribunal in assessee's own case, the issue in appeal is covered against the assessee-company. Therefore, it cannot be said that there is prima facie case in favour of assessee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest. There are many such factors worthy of consideration........." Again vide para. 9 held as follows: "9....Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification for granting the interim orders as was done by the High Court. There was no question of any balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority are reversed by the higher appellate authority or reviewed by its own, the orders passed shall hold the field and shall be binding on both the parties. Even on the proposed action to file rectification application before this Tribunal, it is hypothetical situation since the appellant had not yet filed any Miscellaneous Petition before this Tribunal. Even assuming that any such petition is filed, scope and ambit of all such applications is very limited and having regard to the decision of the Hon'ble jurisdictional High Court in the case of CIT v. McDowell & Co. Ltd. [2004] 269 ITR 451/136 Taxman 716 (Kar.), in proceeding u/s 254(2), the Tribunal is not empowered to change the final outcome of the appeal. The relevant paragraph of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record" does not mean recall the original order, rehear the matter and replace the original order by a fresh order. The purpose can be achieved by continuing the original order and passing an amendment order stating whatever is necessary to rectify the mistake apparent from the record. Whether the issue involved is one or more makes no difference, as what is contemplated and provided for is an amendment to the original order and not an order in substitution of the original order." Thus having regard to the above legal position, the assessee-company had not made out a case for stay of the demand. In the circumstances, the stay petition seeking extension of stay is not maintainable and is accordingly dismissed. 5. In the result, the stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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