2020 (5) TMI 678 - AT - Income Tax

Stay petition - application was moved seeking extension of stay granted to the applicant - HELD THAT - The last stay order which was granted to 09.03.2020 under which no conditions were imposed. The stay was extended to 60 days i.e. ending on 08.05.2020. The issue involved in the present appeal is against the transfer pricing adjustments made and the case of the applicant before us is limited to selection and application Of margins of comparables.The applicant has a prima facie case in its favour as far as granting extension of stay against the recovery of balance outstanding demand is concerned. The stay of demand can be granted to the applicant for a period exceeding 365 days as held by the Hon ble Delhi High Court in the Case of Maruti Suzuki India Ltd. 2014 (2) TMI 1037 - DELHI HIGH COURT and in the case of Pepsi Foods (P.) Ltd. 2015 (5) TMI 655 - DELHI HIGH COURT Coming to the next stand of the Ld.DR for the Revenue as to application of amended provisions Of section 254(2A) Of the Act. The said provisions have been inserted by the Finance Act 2020 w.e.f. 01.04.2020. The present case is of extension of stay and we are Of the view that the said provisions cannot be invoked in the present stay petition of extension of stay. Accordingly we stay the recovery of outstanding demand for a period of 180 days or till the disposal of appeal whichever is earlier. The appeal is fixed for healing on out of turn basis 22.06.2020. Both parties are informed through this order and no separate notice of hearing shall be issued. Both the parties are directed not to take frivolous adjournment. Hence the stay application filed by the applicant stand allowed.

Summary

Issues: Stay application for extension of stay against recovery of outstanding demand; Stay application seeking stay of balance outstanding demand relating to Assessment Year 2012-13.

The applicant filed a stay application for extension of stay against the recovery of outstanding demand and also sought a stay of the balance outstanding demand related to Assessment Year 2012-13. The applicant, an Indian subsidiary of a foreign company, argued that transfer pricing adjustments made were based on incomparable entities. The applicant emphasized its turnover and compared it with similar companies, asserting that excluding certain companies would align the margins within acceptable limits. The revenue department opposed the extension of stay, citing the requirement for the applicant to pay 20% of the outstanding demand as per the Finance Act, 2020. The applicant contended that the amended provision of section 254(2A) was not applicable as it was an extension of stay, not a grant of stay.

The Tribunal, after hearing both parties, found merit in the applicant's case for extending the stay against the recovery of the balance outstanding demand. Citing precedents, the Tribunal allowed the stay for a period exceeding 365 days, as established in previous judgments. Regarding the application of the amended provisions of section 254(2A) of the Act, the Tribunal held that these provisions could not be applied to the present case of an extension of stay. Consequently, the recovery of the outstanding demand was stayed for 180 days or until the appeal's disposal, whichever is earlier. The appeal was scheduled for an expedited hearing, and both parties were instructed not to seek unnecessary adjournments. Therefore, the stay application filed by the applicant was granted, and the order was pronounced on May 27, 2020.