TMI Blog2002 (8) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... before us. - About the deposit of Rs. 20 crores, or the alternative procedure of immediate adversary battle, the parties are allowed a fortnight's time. There will be liberty to mention on both sides before the Bench then taking up tax matters. - - - - - Dated:- 2-8-2002 - Judge(s) : AJOY NATH RAY., MAHARAJ SINHA. JUDGMENT Although we are not at present the regular tax Bench, we have been assembling specially and hearing this appeal under section 260A of the Income-tax Act, 1961, and the stay application in relation thereto for the past nine days. Since we have assembled only on Friday mornings the span of time which we have spent is nearly two and a half months. We had directed that the appeal and the stay application would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r so in the United Kingdom and some 320 or so in France and elsewhere in the world, would be transferred by both the existing British and French companies to the Dutch company. In return therefor the Dutch company would issue the share capital of its to the British and the French companies in equal halves. As a result of this scheme, which has been called by the assessees to be a merger, the shares held by the three assessees in several Indian companies were transferred to the Dutch company. It was because of this transfer that the issue of the liability of the assessees to pay capital gains tax arose. The assessees had contended in the beginning, and they still so contend, that no capital gains tax whatsoever is payable. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was shares of the Dutch company. It is also quite clear, even if this involves a little bit of reading between the lines, that the assessment proceeded really on best judgment basis and the assumption was that the shares were transferred in return for a consideration the value of which, as on a no profit no loss basis, would not fall short of the market value of the shares transferred. From this receipt figure, so to speak, the knocking off of the acquiring price, together with the application of the inflation index, if any, was a matter of ordinary departmental arithmetical procedure. There were also liabilities assessed for payment of interest. The Assessing Officer has also imposed nearly 100 per cent. penalty and the penalty aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see having to put in any security for making proof the recoverability of the amounts which are due to be paid by it on the basis of the Tribunal's order. This places the assessees in a position of discriminatory favour. People under the cloud of a money decree must furnish adequate security for the purpose of enjoying a stay during pendency of the appeal. In a section 260A appeal, the position is particularly special because no departmental process is, in practice, likely to be issued on the basis of an order of the Tribunal which is being heard from week to week by a Division Bench of the jurisdictional High Court. We cannot allow this state of affairs to continue. Nor can we impose an order for security on the stay application wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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