TMI Blog2019 (9) TMI 1579X X X X Extracts X X X X X X X X Extracts X X X X ..... on also has to be kept in perspective while considering assessee s prayer for grant of stay. Further, it is seen from record, the corresponding appeal of the assessee is now posted for hearing on 5th November 2019. Therefore, considering the overall facts and circumstances, prima facie case, balance of convenience and without prejudice to the respective rights and contentions of the parties, which will be duly considered at the time of hearing of the corresponding appeal, we direct the assessee, in the interregnum, to pay a further sum of ₹ 25 crore in two equal instalments of ₹ 12-50 crore each by the end of September, 2019 and October, 2019 and furnish proof of such payment before the AO. Further the corporate guarantee furnished by the assessee as per the earlier direction of the Bench should also continue. Subject to fulfilment of the aforesaid conditions, recovery of balance outstanding demand shall remain stayed for a period of six months from the date of this order or till disposal of the corresponding appeal of the assessee, whichever is earlier. - S.A. no.319/Mum./2019 - - - Dated:- 4-9-2019 - SHRI SAKTIJIT DEY AND SHRIN.K. PRADHAN, JJ. Assesseeby : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extending stay. Hence, it cannot be treated as infructuous. She submitted, if it is the contention of the Revenue that there cannot be any extension of stay, as the last stay order has already expired, in that event, the present application should be considered as a fresh stay application. 5. On a query from the Bench, the learned Departmental Representative submitted, he has no objection if the present application filed by the assessee is treated as a fresh stay application. Therefore, with the consent of both the parties, the present stay application is taken up for disposal as a fresh stay application. 6. The learned Counsel for the assessee, praying for stay of the balance outstanding demand submitted, the major part of the demand relates to addition of ₹ 1180,29,26,769, in respect of transfer/assignment of call options under the frame work agreement dated 5 July 2007. She submitted, while framing the order under section 92CA(3) of the Act for the assessment year 2008-09, the Transfer Pricing Officer had proposed the adjustment on this count on substantive basis. She submitted, in the impugned assessment year, the same addition was proposed on protective basis to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on protective basis. The learned Counsel for the assessee submitted, while granting stay for the impugned assessment year, the Tribunal had directed the assessee to pay = 50 crore and furnish a corporate guarantee for the balance outstanding demand which has been complied by the a sessee. Therefore, she submitted, the interest of the Revenue has been secured. She submitted, even for the assessment year 2008-09, the assessee had paid substantial part of the demand and also furnished a corporate guarantee. She submitted, the refund arising in the assessment year 2008-09 after the decision of the Hon'ble Jurisdictional High Court has been adjusted against the outstanding demand of the assessment year 2010-11, but the corporate guarantee furnished by the assessee in assessment year 2008-09, has not been returned by the Revenue. Therefore, she submitted, neither the facts and circumstances on the basis of which stay was granted earlier to the assessee have materially changed nor any prejudice will be caused to the Revenue by granting stay, since, its THRRYERE has been well safeguarded by virtue of the conditional stay order passed by the Tribunal earlier. Thus, she submitted, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointing Special Counsel, however, he submitted, no such request for adjournment would be made on the next date of hearing and the Revenue is ready to argue the appeal. 9. In rejoinder, the learned Counsel for the assessee submitted the appeal decided by the Tribunal, Ahmadabad Bench, for the assessment year 2012-13 cannot be equated with the present appeal since there is difference in facts. Further, she submitted, against the decision of the Tribunal, Ahmedabad Bench, in assessment year 2012-13, the assessee had preferred appeal before the Hon ble Gujarat High Court and the Hon ble High Court having found substantial question of law, has admitted the appeal. Thus, she submitted, there is no reason to vary or modify the terms and conditions on the basis of which stay was earlier granted to the assessee for the impugned assessment year. 10. We have considered rival submissions and perused material on record. It is evident, following demands were raised by the Revenue in the impugned assessment year. 1. Assignment of call option ₹ 1180,29,26,769 2. Department on goodwill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. Insofar as the impugned assessment year is concerned, the comeseaaane appeal of the assessee is getting adjourned from time-to-time due to reasons not attributable to the assessee. Therefore, the assessee cannot be faulted for non-disposal of the appeal. At the same time, the contention of the learned Departmental Representative that identical issue relating to transfer/assignment of call option in the assessment year 2012-13 has been decided by the Tribunal, Ahmedabad Bench against the assessee cannot be ignored altogether. Further, the contention of the learned Departmental Representative that the amount of income accruing to the assessee on account of transfer/assignment of call option has to be assessed in any one of the assessment years, considering the fact that the assessee has already exercised its option to transfer/assign, merits consideration. As mentioned earlier, The contention of learned Departmental Representative that the ITAT Ahmedabad Bench in assessee s own case for Assessment Year 2012-13 vide order dated 23th January 2018, on similar facts, has confirmed the transfer pricing adjustment on exercise of call option also has to be kept in perspective while cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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