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Google India Pvt Ltd. Versus Joint Director of Income tax (International Taxation) , Bangalore

2017 (11) TMI 852 - ITAT BANGALORE

Seeking extension of stay of demand - 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 - only ground on which learned counsel for the assessee is seeking extension of stay of demand is that he is proposing to appeal against the recent orders of the Tribunal for earlier years before the Honíble High Court and also intends to file Misc. Application before this Tribunal - Held that:- In our considered opinion, this cann .....

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, scope and ambit of all such applications is very limited and having regard to the decision of the Honíble jurisdictional High Court in the case of CIT v. McDowell & Co. Ltd. [2004 (3) TMI 41 - KARNATAKA High Court] in proceeding u/s 254(2), the Tribunal is not empowered to change the final outcome of the appeal. - 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 .....

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in question had arisen on account of TDS officer holding the assessee as the assessee in default for 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 .....

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d against the assessee-company by orders of this Tribunal for earlier years. 3. We heard rival submissions and perused the material on record. The assessee-company is seeking extension of stay of demand of ₹ 59,42,20,422/-. This demand had arisen on account of treating the payment made by the assessee-company to Google Ireland Ltd., as payment in the nature of royalty both under the provisions of domestic law as well as under DTAA between India and Ireland. Admittedly, this issue is covere .....

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r period of 3 months vide order dated 31/03/2017 in SP No.74/Bang/2017. The stay was further extended up to 31/10/2017 vide order dated 03/08/2017 in SP No.119/Bang/2017. The present stay petition is filed seeking further extension of the stay of demand. Admittedly there is change of d circumstances from the first stay order, since this Tribunal had disposed of the appeal involving identical issue for earlier years against the assessee. Therefore, the principle that in absence of change of circu .....

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gainst the assessee-company. Therefore, it cannot be said that there is prima facie case in favour of assessee. The Hon ble Apex Court, in the case of Asstt. Collector of Central Excise v. Dunlop India Ltd. [1985] 154 ITR 172 laid down the following three para meters to be taken into consideration at the time of grant of stay of demand by the appellate authorities: i. Existence of prima facie case ii. Financial hardship, and iii. Irreparable injury and balance of convenience. The Hon ble Supreme .....

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le private injury or shake a citizen s faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bona fide with due regard to the public interest, a Court must be circumspect in granting interim orders of far-reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for no bette .....

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uch 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 of convenience being in favour of the respondent- company. The balance of convenience was certainly in favour of the Government of India. Governments a .....

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rima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest . In the present case, learned counsel for the assessee fairly admitted that none of the above para meters laid down by the Hon ble Apex Court in the case of Dunlop India Ltd. (supra) are met. The only ground on which learned counsel for the assessee is seeking .....

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arties. 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), .....

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