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TMI Blog2018 (2) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... at total income at Rs. 408,33,61,672/-. While doing so, the Assessing Officer [AO] treated the loss incurred in the business as capital expenditure as the loss in the form of discounts offered to customers is intended to build up brand value/monopoly or primacy in the online market. For the purpose of arriving at the price at which the assessee- company could have sold the products, the AO had applied the comparable profit earned by entities engaged in similar line of business on the cost of goods sold + cost of the goods sold. The difference between realizations made by the assessee-company and the value so arrived is capitalized and depreciation thereon was allowed at 25% treating it as intangible asset. Consequently addition of Rs. 1401,23,65,549/- was made to the returned loss, before setting off of brought forward losses of earlier years. After set off of the brought forward losses, assessed income was computed at Rs. 1204,67,18,537/-. 3. On appeal before the ld. Commissioner of Income-tax(Appeals) [CIT(A)], the ld.CIT(A) adopting the average profit of comparable at 11.369 as against 16.96 adopted by the AO, computed the addition at Rs. 13,32,01,64,018/- as against Rs. 1401, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disputed tax demand. However, learned counsel for assessee had not brought any material on record like copies of bank statements etc., in support of this assertion. 6. On the other hand, learned DR placed reliance on the orders of the lower authorities. 7. We heard rival submissions and perused material on record. Now it is settled position of law as held by the Hon'ble Apex Court in the case of Asst. Central Excise vs. Dunlop India Ltd. (154 ITR 172) that disputed tax demand can be stayed by the appellate authorities on the consideration of (i) Existence of prima facie case, (ii) Financial hardship and (iii) Irreparable injury and balance of convenience. 8. In the present case, the arguments advanced on behalf of the assessee-company in support of the existence of prima facie case extracted supra, cannot be accepted for simple reason that the AO had not rejected the books of account nor applied the TP principles on transactions with unrelated party as the AO merely adopted the methodology to arrive at the value of realization, had the products would have been sold with profit motive. Therefore, none of the case-laws relied upon by the learned counsel for the assessee-compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 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 Court held as follows in para.6: "6. . . . All this is not to say that interim orders may never be made against public authorities. There are, of course, cases which demand that interim orders should be made in the interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the Court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent 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. ............................. 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." 8.3 Even in the present case, the ratio laid down by the Hon'ble Apex Court in the case of Dunlop India Ltd., (supra) is squarely applicable, as the assessee-company had failed to make out a case that there is gross violation of law and injustices are perpetuated and denial of stay would lead to irreparable loss, there is no balance of convenience in favour of the assessee-company to order stay of the demand in question, not to speak of the financial hardship. Further, the Hon'ble jurisdictional High Court, while approving the spirit of the order of this Tribunal in Google India Pvt. Ltd. (supra) held as follows in [2017] 87 taxmann.com 290: 8. Having heard learned counsel for the respective par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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