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2018 (2) TMI 738

onths before the Assessing Officer on or before 28/02/2018. The stay order is valid for a period of six months from the date of the order or till disposal of the appeal whichever is earlier. The matter is already listed for hearing for 17/05/2018. However, we direct the registry to advance the hearing date to 09/04/2018. The stay order is subject to condition that the assessee- company shall not seek adjournment of the appeal without any just and reasonable. - Stay Petn.No.25/Bang/2018 (In ITA No.202/Bang/2018) - Dated:- 6-2-2018 - Shri Sunil Kumar Yadav, Judicial Member And Shri Inturi Rama Rao, Accountant Member Petitioner by : Shri Tarun Gulati, Advocate Respondent by : Dr. P.V.Pradeep Kumar, Addl.CIT(DR) ORDER Per Inturi Rama Rao, AM This stay petition is filed by the assesse-company for the assessment year 2005-06 seeking 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 refun .....

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f account. Reliance in this regard was made on the order of the Gujarat High Court in the case of CIT vs. Keshavlal Chandulal (59 ITR 120). iv) The AO cannot adopt market price of goods sold ignoring the real price fetched from the transaction. Reliance in this regard was placed on the decision of the Hon ble jurisdictional High Court in the case of A.Khadar Bhasha vs. ACIT (232 Taxman 434). v) The AO cannot make addition merely based on perceived general market conditions. Reliance in this regard was placed on the decision of the Hon ble Delhi High Court in CIT vs. Discovery Estates (P) Ltd. (356 ITR 159). vi) The AO cannot resort to estimation of income without rejecting the books of account by drawing support from the decision of the Hon ble jurisdictional High Court in the case of CIT vs. 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 Hi .....

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ed counsel for assessee-company that there is strong prima facie case in favour of the assessee-company, on the merits of the additions made by the AO. 8.1 As regards financial hardship, the only submission of the assesse- company is that it is incurring losses. Hence, the liquidity position of the assessee-company cannot afford to pay the disputed tax liability. This, in our considered opinion, may not be reflecting the true picture of the financial position of the company, there is every possibility of availability of liquidity in the company on account of receipt of huge share capital and huge share premium. The assessee-company made no effort to file any evidence demonstrating any financial hardship before us. Therefore, we hold that no case was made out in favour of the assessee-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 E .....

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........ " 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 are not run on mere bank guarantees. We notice that very often some Courts act as if furnishing a bank guarantee would meet the ends of justice. No Governmental business or for that matter no business of any kind can be run on mere bank guarantees. Liquid 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 t .....

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balance of another 20% in Account No.0037238007 maintained with CITI Bank, M.G.Road Branch, Bengaluru-560 001. The said balance is rounded off to ₹ 26,00,00,000/- (Rupees twenty six crore only) shall be maintained pending disposal of the appeal by the Appellate Tribunal. It is directed that the respondent shall not take further steps pursuant to order dated 15/11/2017 (Annexure-H) and notice dated 20/11/2017 till the disposal of the appeal by the Appellate Tribunal. 8.4 In the present case also, drawing support from the decision of the Hon ble jurisdictional High Court in the case of Google India Pvt. Ltd. (cited supra) we direct the assessee-company to pay 50% of the demand in question on or before 28/02/2018 and furnish bank guarantee for balance demand for a period of 6 months before the Assessing Officer on or before 28/02/2018. The stay order is valid for a period of six months from the date of the order or till disposal of the appeal whichever is earlier. The matter is already listed for hearing for 17/05/2018. However, we direct the registry to advance the hearing date to 09/04/2018. The stay order is subject to condition that the assessee- company shall not seek adjou .....

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