PER LALIET KUMAR, JUDICIAL MEMBER : The assessee has filed these three stay petitions seeking stay of outstanding demand for the assessment years 2010-11, 2011-12 and 2012-13.
02. It was submitted by the assessee that the demand outstanding for AY 2010-11 is Rs.87,265,314/-, for AY 2011-12 it is SP.68 to 70/Bang/2018 Page - 2 Rs.79,172,346/- and for AY 2012-13 it is Rs.200,732,468/-. The assessee has submitted that out of the comparables which are selected by the TPO and confirmed by the DRP some comparables are required to be excluded and therefore nothing would be payable by the assessee in respect of these three assessment years. It was submitted by the assessee that though the assessee is having a prima facie case and balance of convenience in its favour, however to show the bonafide the assessee had agreed to pay a further reasonable amount as a condition for grant of stay which may be put by the Tribunal while putting the terms for grant of stay.
03. On the other hand the Ld. DR has submitted that the assessee be directed to pay 50% of the total demand in accordance with the principle laid down by the Honble High Court in the matter of Google India Ltd .
04. We have heard the rival contention and perused the record. In our view the assessee was required to demonstrate the prima facie case and balance of convenience and financial hardship for the purposes of making out a case for grant of interim stay. As the assessee has already paid more than 52%, for the assessment year 2010-11and 70.54% of the tax demand for the assessment year 2011-12, therefore in the considered opinion of the bench the assessee is not required to pay any further sum for these two assessment years. Accordingly the remaining outstanding demand for these two assessment years are stayed till the final disposal of the appeals. SP.68 to 70/Bang/2018 Page - 3 With respect to the assessment year 2012-13 the assessee had already deposited 36.64% of the total tax demand i.e., Rs.48,000,000/- and Rs.68,071,420/-. The total tax demand for this assessment year was Rs.316,803,888/- and out of the said demand, demand of Rs.200,732,468/- is outstanding. The 50% of Rs.316,803,888/- would come to Rs.158,401,944/-. We are of the opinion that a view to balance the equities of both the parties, it is necessary to put condition for grant of stay accordingly ,we deem it appropriate to direct the assessee to deposit a sum of Rs.4.5 crores in addition to the sum already deposited / adjusted by the Revenue on or before 15.03.2018. This is also in conformity with the judgment of the Honble jurisdictional High Court in the matter of Google India Ltd v. DCIT (Intl.Taxation) [WP Nos.52358- 52359/2017(T-IT), DT.22.11.2017], wherein it is held as under :
8. Having heard learned counsel for the respective parties at length, I find that granting of any interim order in these writ petitions and keeping the writ petitions pending before this Court would not serve any purpose particularly, when the matter is set down for final arguments before the Appellate Tribunal tomorrow (23/11/2017). In the circumstances, a direction is issued to the Tribunal to dispose of the appeal in an expeditious manner i.e., on or before 31/01/2018. It is needless to observe that in view of the specific direction issued by this Court for expeditious disposal of the appeal by the Appellate Tribunal, both parties are directed to co- operate with the Tribunal.
9. It is noted that the demand is about Rs.129,00,00,000/- (Rupees one hundred and twenty nine crore only). It is an admitted fact that a sum of Rs.70,00,00,000/- (Rupees seventy crore only) is deposited by the petitioner which amounts to about 55% SP.68 to 70/Bang/2018 Page - 4 of the outstanding demand. In order to further protect the interest of the revenue and keeping in mind the fact that the appeal is slated for final arguments before the Appellate Tribunal and balancing the equities on both sides, the petitioner is directed to retain a 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 Rs.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. If the assessee pays the above said amount of Rs.4.5 crores within the time frame stated herein above then the balance Tax amount shall not be enforced by the Revenue by taking any steps whatsoever. This stay shall be in operation for a period of 180 days or till the disposal of the appeal whichever is earlier. Needless to say that the assessee shall cooperate in early disposal of appeals and shall not take undue adjournment in the matter. The assessee is also directed to file paper books, if any, in advance with a copy to the Department. We would like to add as a condition of stay that the assessee shall file paper books / documents before NDOH after supplying the same to the Revenue and it is further directed that the assessee shall not take any undue adjournment in the matter. In case any of the terms and conditions is violated then the stay granted by the Tribunal shall be deemed to have been vacated. We would like to add that nothing stated hereinabove shall SP.68 to 70/Bang/2018 Page - 5 be considered as an expression on merits of the case and is only prima facie observations of the bench.
05. In the result, all the stay petitions are disposed as above. Order pronounced in the open court on 2nd March, 2018. Sd/- Sd/- (INTURI RAMA RAO) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Bengaluru Dated : 02.03.2018 MCN* Copy to:
1. The assessee
2. The Assessing Officer
3. The Commissioner of Income-tax
4. Commissioner of Income-tax(A)
5. DR
6. GF, ITAT, Bangalore By order Senior Private Secretary, Income Tax Appellate Tribunal, Bangalore.
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