2018 (9) TMI 1942 - AT - Income Tax

Extension of stay granted earlier by the Tribunal for the outstanding demand - HELD THAT - We find that assesssee does have prima facie balance of convenience in its favour for extending stay for the reason that - Firstly, earlier this Tribunal after considering entire facts and circumstances has granted stay for the period of six months ; Secondly, there is fault on the part of the assessee in not conducting the appeals as the hearing could not take place for the reason that one of the issues involved has been referred to a larger Special Bench at Mumbai which is still pending. Thirdly in the earlier years similar issue is involved and has been decided in favour of the assessee and Lastly the assessee has given the working of the demand and if one of the issues in which it has been made by the Ld. CIT(A) that disallowance made on account of supplementary rent is allowed to the fact that the issue of supplementary rent which has been decided by the Tribunal in favour of the assessee in asstt. Year 2007-08 question of law has not been admitted by the Hon ble Delhi High Court, then in that situation coupled with the fact that MAT credit is given, then virtually there would be no demand outstanding. In view of the aforesaid reason we are extending the stay further period of six months or till the date of the passing of the order whichever is earlier.

Summary

Issues involved:
Extension of stay granted by Tribunal for outstanding demand of ?1,15,46,26,840; Prima facie balance of convenience in favor of assessee; Direction to pay part of demand; Consideration of fault on part of assessee in not conducting appeals; Previous Tribunal decisions in favor of assessee; Working of demand and impact of MAT credit.

Analysis:
The judgment pertains to a stay application seeking an extension of the stay granted by the Tribunal for an outstanding demand of ?1,15,46,26,840. The applicant, represented by Shri R.S. Syali, argued for the extension of the stay based on the fact that the appeal had not been heard due to a similar issue pending before a larger Special Bench at Mumbai. It was contended that there had been no change in the circumstances of the case, and the stay should be extended for a further six months or until the passing of the order, whichever is earlier.

The applicant highlighted that the balance of convenience favored the assessee as allowing the credit of Minimum Alternate Tax (MAT) would eliminate the demand, potentially resulting in a refund for the assessee. Additionally, the carry-forward of earlier losses would further reduce the demand. It was emphasized that previous Tribunal decisions had ruled in favor of the assessee on similar issues in earlier years, strengthening the case for the extension of the stay.

On the other hand, the Senior Departmental Representative argued against granting a blanket stay, suggesting that the assessee should be directed to pay at least a part of the demand. The contention was based on the Tribunal's conclusion that the earlier order could not be followed, leading to the constitution of a Special Bench to address the issue.

Upon considering the submissions and the material on record, the Tribunal found that the assessee had a prima facie balance of convenience in its favor for extending the stay. The Tribunal noted that the earlier stay had been granted for six months, there was no fault on the part of the assessee for the delay in the hearing, previous decisions favored the assessee, and the working of the demand indicated that with the allowance of MAT credit, there would be no outstanding demand. Consequently, the Tribunal extended the stay for a further six months or until the passing of the order, whichever is earlier. The order was pronounced on 14th September 2018.