2. The ld. AR for the assessee submitted that these are high-pitched assessments passed by the AO without granting exemption u/s. 10A/10AA, disallowance of payment to AE, disallowance of depreciation on leased assets and short-grant of TDS. He submitted that the issue relating to grant of exemption us/. 10A came up before this Tribunal for the AY 2008-09 in ITA No. 1543/Bang/2012 and the Tribunal vide order dated 20.12.2013 has remitted the issue to the file of the AO with the following observations:—
“3.86 As rightly submitted by the ld. counsel for the assessee, the AO as well as the DRP projected the claim of the assessee for deduction u/s. 10A of the Act only on the ground that there was no RBI approved bank account outside India in which the sale proceeds of computer software exported out of India were deposited. This would be material only for taking the benefit of Explanation-2 to section 10A(3) of the Act. The assessee is not barred from claiming deduction under the main provisions of section 10A(3) of the Act, whereby it can satisfy the AO about the receipt of sale proceeds of computer software exported out of India being brought into India in convertible foreign exchange within the period stipulated in the provisions u/s. 10A(3) of the Act. As rightly submitted on behalf of the assessee, deduction u/s. 10A/10AA of the Act cannot be totally denied. The fact that the assessee has exported computer software out of India and brought convertible foreign exchange into the country is not disputed. The quantum has to be arrived at on the deduction which the assessee is entitled to, has to be allowed.
3. According to the ld. AR, the assessee has a prima facie case and has paid more than 50% of the original demand of tax. Hence he prayed that absolute stay may be granted.
4. On the other hand, the ld. DR submitted that in the present assessment years, there is a dispute regarding export of software out of India and bringing of convertible foreign exchange into the country. However, in the earlier assessment year, these facts were not disputed and hence the ratio laid down in the earlier assessment year cannot be applied and objected to grant of stay.
5. We have heard the rival submissions and perused the material on record. In our opinion, there is a prima facie case in favour of the assessee. Hence, in the interest of justice, we are inclined to grant conditional stay. The assessee has to pay 20% of the outstanding demand as on date by way of 2 instalments as follows:—
10% of the outstanding demand:
On or before 15.02.2019
10% of the outstanding demand:
On or before 15.03.2019
6. Needless to say that the AO has to ascertain the correct outstanding balance of demand as on date of this order and accordingly the assessee is directed to make the payment as indicated above. Stay is accordingly granted for a period of six months from the date of this order, or till the disposal of appeal, whichever is earlier. The appeals are fixed for hearing on 02 May, 2019 (02.05.2019) and the parties shall not seek any adjournment without sufficient and justifiable reason. The assessee is also directed to co-operate.
7. In the result, the stay petitions filed by the assessee are partly allowed.
Pronounced in the open court on this 1 day of February, 2019.