2002 (8) TMI 101 - HC - Income Tax

Appeal To High Court, Application For Stay - It seems from the international wealth of Mr. Bajoria s clients that they might well be willing to put in a sufficient security and then have their appeal heard out. But some time has to be allowed in this regard to see whether the security would be furnished as a matter of course or the usual adversary system has to be followed in regard to the hearing out of the stay application before the hearing of the appeals. - With the above observations the appeal and the stay application are both released from our list, not to be treated as part-heard 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.

Issues involved:
1. Tax liability of three English companies involving capital gains tax, interest, and penalty.
2. Transfer of shares to a Dutch company leading to the tax dispute.
3. Assessment proceedings by the Assessing Officer and imposition of penalties.
4. Appeal to the Appellate Commissioner resulting in the release of the deposit.
5. Stay application and security requirements during the appeal process.

Tax Liability Issue:
The judgment concerns the tax liability of three English companies, involving capital gains tax, interest, and penalties. The companies entered into an agreement with French counterparts, leading to a transfer of shares to a Dutch company, triggering the capital gains tax issue. Despite contentions by the assessees that no tax was payable, the Assessing Officer confirmed a liability exceeding Rs.10 crores. The assessment was based on the assumption of consideration received for the share transfer, leading to penalties and interest assessments. The Appellate Commissioner's decision favored the assessees, resulting in the release of the deposit.

Transfer of Shares Issue:
The transfer of shares from the English companies to a Dutch company formed the basis of the tax dispute. The scheme involved merging shares held in various companies, including Indian ones, into the Dutch company. The disagreement arose over the capital gains tax liability due to this transfer, with the assessees arguing against the tax obligation. The provisional tax figure was calculated to facilitate the transfer, with bank guarantees and permissions obtained from the Reserve Bank of India.

Assessment and Penalties Issue:
The Assessing Officer's assessment concluded a substantial tax liability, including interest and penalties, based on the market value of the transferred shares. The assessment was perceived to be on a best judgment basis, assuming consideration received for the shares. The penalty imposition was nearly 100%, with separate proceedings pending before the Tribunal. The Appellate Commissioner's decision favored the assessees, leading to the release of the deposit.

Appeal and Stay Application Issue:
The judgment highlighted the erroneous impression regarding the deposit status, leading to a reevaluation of the appeal and stay application process. The assessees, based in England, were not required to provide security for the appeal process, raising concerns of discriminatory treatment. The Court emphasized the need for a fair process, suggesting the possibility of security deposit or an adversary battle before the appeals are heard, allowing a fortnight for parties to decide on the approach.

This detailed analysis of the judgment addresses the tax liability, share transfer, assessment proceedings, penalties, appeal outcome, and the stay application process, providing a comprehensive overview of the legal issues involved in the case.

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