2018 (1) TMI 1662 - AT - Income Tax

Stay of recovery of outstanding demand - Assessment order in the name of company amalgamated - HELD THAT - We find that the department is seeking adjournment for hearing of the main appeals. As the balance of convenience is in favour of the assessee considering the fact that the Hon ble High Court has given stay of recovery for the earlier years and also considering the fact that the assessment order was passed in the name of non-existing company the assessment order itself may not survive depending upon the facts on record. We cannot pass on any order without hearing the main appeal. Therefore we are inclined to grant temporary stay of the outstanding demands for both the years under consideration for a period of month from the date of this order.

Summary

Issues:
Stay of recovery of outstanding demand for AY 2015-16 and AY 2016-17.
Validity of order passed in the name of an amalgamated company.

Analysis:
The assessee filed Stay Applications seeking to halt the recovery of outstanding demands for AY 2015-16 and AY 2016-17. The assessee highlighted that the Andhra Pradesh High Court recently stayed the recovery of demand for previous fiscal years on a similar issue pending before the Supreme Court. The High Court acknowledged the pending substantial question of law and the significant deposits made by the Applicant towards the disputed liability, favoring a stay. The assessee also argued that an order passed in the name of an amalgamated company is null and void, citing a Delhi High Court judgment affirmed by the Supreme Court.

The ld. AR of the assessee contended that the order passed by the TDS Officer in the name of the amalgamated company was legally flawed, making any further demand recovery for the relevant assessment year impermissible. On the contrary, the ld. DR opposed the stay of recovery for both years under consideration.

Upon reviewing the submissions and orders of the revenue authorities, the Tribunal noted that the department sought adjournment for hearing the main appeals. Considering the balance of convenience in favor of the assessee, especially due to the High Court's stay of recovery for earlier years and the potential invalidity of the assessment order due to being passed in the name of a non-existing company, the Tribunal decided to grant temporary stay of the outstanding demands for a month from the date of the order. The Tribunal emphasized the need to hear the main appeal before passing any final orders.

Ultimately, the Tribunal allowed the Stay Applications filed by the assessee, granting temporary stay of recovery for the outstanding demands for AY 2015-16 and AY 2016-17. The order was pronounced in open court on 24th January 2018.