TMI Blog2018 (2) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking stay of demand of ₹ 109,52,32,984/. 2. Briefly, the facts of the case are that the assessee was engaged in the business of wholesale distribution of books, mobiles, computers, home appliances, electronics, apparels etc. The return of income for the assessment year 2015-16 was filed on 10/09/2015 declaring loss of ₹ 796.34 crores and claiming refund of ₹ 10.39 crores. Against the said return of income, the assessment was completed by the Asst.CIT, Circle 3(1)(1), Bangalore [hereinafter referred to as AO] vide order dated 28/10/2016 passed u/s 143(3) [hereinafter referred to as 'the Act' for short] at total income at ₹ 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 betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anil Kumar Co. (386ITR 702). vii) The ld.CIT(A) denied depreciation on intangibles without granting an opportunity of being heard to the assessee-company. Thus it was submitted that in the light of the above facts of the case, the assessee-company has got strong prima facie case in its favour as the impugned additions were made against the ratio laid down by the Hon ble jurisdictional High Court in the cases cited supra. 5. As regards the liquidity position of the company, the learned counsel for the assessee-company merely stated that in view of huge losses incurred by the assessee-company the financial position of the assessee-company does not permit to pay 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee-company on account of financial hardship. 8.2 As regards balance of convenience also, the assesse-company had failed to make out any case in its favour. The co-ordinate bench of Tribunal in the case of Google India Pvt. Ltd. vs. DCIT (International Taxation) (87 taxman.com 149) [to which both of us are parties], after referring to the judgment of the Hon ble Supreme Court in the case of Asst. Central Excise vs. Dunlop India Ltd. (154 ITR 172) held as under: 4. In the original stay petition, this Tribunal granted stay of demand subject to payment of ₹ 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quid cash is necessary for the running of a Government as indeed any other enterprise. We consider that where matter of public revenue are concerned, it is of utmost importance to realize that interim orders ought not to be granted merely because a prima 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. .. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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