2012 (8) TMI 731 - AT - Income Tax

Stay petition - recovery of outstanding demand Held that - DRP passed the directions in its cryptic order of three pages without giving thought to all the objections raised by the assessee - very high pitch addition is made by discarding the comparables given by the assessee and hence, this demand is raised - adjustment made by the TPO and also considered by the DRP in respect of the international transactions with the AEs appears to be without application of mind - assessee made out a prima facie case for grant of the stay - assessee s stay petition is allowed

Summary

Issues: Stay petition for recovery of outstanding demand for the assessment year 2006-07.

Analysis:
1. Transfer Pricing Adjustment Controversy:
The assessee, a subsidiary of a US company, filed a return of income for the assessment year 2006-07, declaring total income after deductions. The Assessing Officer (AO) referred the case to the Transfer Pricing Officer (TPO) due to transactions with Associated Enterprises (AEs). The TPO determined the Adjusted Income Level Price (ALP) resulting in a significant adjustment. The Dispute Resolution Panel (DRP) provided minor relief, but the AO made a substantial addition to the income. The assessee challenged the assessment order directly before the Tribunal, emphasizing that the comparables used were rejected without valid reasons and that the adjustment was disproportionate.

2. Arguments and Prima Facie Case:
The counsel for the assessee argued that the DRP did not consider the detailed objections filed, and the directions were cryptic. The counsel highlighted that the operating profit was within an acceptable range in previous years and that the high addition was unwarranted. The counsel pleaded for a stay, citing potential severe hardship for the company. The Tribunal noted that the DRP's consideration seemed lacking, and the adjustment appeared to be without proper evaluation. While acknowledging the prima facie case made by the assessee, the Tribunal balanced it with the interest of the Revenue.

3. Decision and Stay Order:
The Tribunal allowed the stay petition, subject to the payment of a specified amount towards the outstanding demand. The assessee was directed to make the payment by a specified date, with the remaining demand stayed for a designated period or until the appeal's disposal. Compliance requirements were set, and the appeal was scheduled for a hearing. The Tribunal emphasized that no separate notice would be issued for the hearing, and the stay petition was allowed under the specified terms.

In conclusion, the Tribunal granted the stay petition, considering the transfer pricing adjustment controversy, arguments presented by the parties, and the prima facie case made by the assessee. The decision aimed to balance the interests of the assessee and the Revenue, providing relief while ensuring compliance with payment obligations and procedural requirements.