Saktijit Dey, J.M:— By this Stay Application, the assessee is seeking stay of outstanding demand of Rs. 1,45,14,112/- for the asst. year 2008-2009 till the disposal of the appeal by the Tribunal.
2. The learned authorized representative of the assessee submitted that the assessment was completed by raising a demand of Rs. 1,45,14,112/-. However, while completing the assessment, the AO has ignored recovery of expenses and Misc. income amounting to Rs. 43,69,333/- as operating income in computing the profit level indicator of the company. It is submitted, the ITO has further not set off the business loss of the undertaking amounting to Rs. 63,88,067/- u/s. 70 of the Act against the business income determined. The assessee therefore has filed a rectification application Before the ITO on 22-11-2012 seeking rectification of the said mistakes. The learned AR submitted that if the aforesaid mistakes are rectified, then the demand will be reduced to Rs. 88,46,628/- including the interest component. The learned AR submitted that on merits also the assessee has a good prime facie case as the comparables selected by the TPO by applying certain filters are not correct.
3. On the other hand, the learned departmental representative opposed grant of absolute stay of outstanding demand.
4. We have considered the submissions of the parties and perused the material available on record. So far as merits of the additions are concerned, it cannot be considered at this stage. However it appears from the facts narrated in the Stay Application, the rectification petition filed by the assessee Before the ITO has not yet been attended to. It is the contention of the assessee that, if necessary rectification is carried out, the demand will be reduced to Rs. 88,46,628. Considering the aforesaid submissions of the learned AR and taking into account the totality of facts and the circumstances, we are inclined to grant conditional stay by directing the assessee to pay a sum of Rs. 20 lakhs (Rupees Twenty Lakhs only) on or Before 25-2-2013. Subject to payment of the aforesaid amount, recovery of balance demand shall remain stayed till the disposal of the appeal or six months from the date of this order whichever is earlier. It is seen from record that the appeal has been posted for hearing on 15-4-2013. This order of the Tribunal may be treated as notice of hearing and no separate notices will be sent to the parties concerned. We direct the assessee not to take any unnecessary adjournment on the date of hearing fixed. We also direct the parties to file paper books, if any, on or Before 8-04-2013.
5. In the result, the Stay Application of the assessee is allowed in part as indicated above.