2016 (9) TMI 1194 - HC - Income Tax

Application to stay the recovery of the demand - Held that - In the present case by the impugned order dated 14.06.2016 the petitioner was required to deposit 15% of the outstanding demand, namely, ₹ 41.64 crores. This figure attained finality. At the cost of repetition, the Assessing Officer did not refer the matter to the Administrative Pr.CIT for an amount higher than 15% of the amount to be deposited as a condition for stay. This infact indicates that the last sentence in paragraph 5 of the order dated 14.06.2016 granted the Assessing Officer the right to adjust any refund which may arise in favour of the assessee in respect and to the extent of the said 15% of the demand only. In any event, even if it entitles the Assessing Officer to adjust any refund against the entire tax demand, it would be contrary to the instructions of the CBDT contained in the Office Memorandum dated 29.02.2016. Lastly, Mr. Putney submitted that the Assessing Officer has unbridled powers under section 220(6) of the Act. However, in view of the circular dated 02.02.1993 as clarified by the circular dated 21.03.1996 and modified by the Office Memorandum dated 29.02.2016 the Assessing Officer s powers have been circumscribed to the extent provided therein. We quite see the force in Mr. Putney s contention that the department must safeguard its interest and that its interest may be jeoparadized if the petitioner is entitled to avail of the refund and at the same time enjoy the benefit of the stay. However, the Department is bound by the circular as modified by the Office Memorandum. Had the circulars/Office Memorandum not been in force, it may have been a different matter altogether. In the circumstances, the writ petition is disposed of by holding that the petitioner shall be entitled to a stay of the demand subject to its depositing the installments as required by the order dated 14.06.2016 and that the future refunds can be adjusted only to the extent of the balance amount directed to be paid as a condition for the stay.

Summary

Issues Involved:
1. Challenge to the rejection of the application for stay of recovery of tax demand.
2. Interpretation of the CBDT instructions and Office Memorandum regarding stay of demand.
3. Financial hardship and prima-facie case on merits.
4. Adjustment of refunds against the tax demand.

Issue-wise Detailed Analysis:

1. Challenge to the Rejection of the Application for Stay of Recovery of Tax Demand:
The petitioner challenged the order dated 14.06.2016 by the Principal Commissioner of Income Tax (Pr.CIT), which rejected the application to stay the recovery of a tax demand of approximately ?277 crores until the disposal of its appeal before the Commissioner of Income Tax (Appeals). The subsequent application for clarification/modification was also rejected on 26.08.2016. The petitioner sought a stay of the recovery or, alternatively, a stay upon paying a reasonable part not exceeding 15% of the total demand, as per CBDT instructions dated 29.02.2016.

2. Interpretation of the CBDT Instructions and Office Memorandum Regarding Stay of Demand:
The court referred to Section 220(6) of the Income Tax Act, 1961, and the CBDT's Office Memorandum dated 29.02.2016, which streamlined the process for granting a stay of demand. It was held that the Assessing Officer must grant a stay on payment of 15% of the disputed demand unless specific conditions warrant a higher or lower amount. The court clarified that the right to adjust refunds is limited to the amount required for granting the stay, i.e., 15% of the disputed demand.

3. Financial Hardship and Prima-Facie Case on Merits:
The petitioner demonstrated financial hardship, with audit results indicating a loss of about ?1759 crores and a downgrade in its rating to the default category. The court acknowledged the prima-facie case on merits, particularly referencing a previous judgment which held that maintaining separate books of account is not mandatory for claiming deductions under sections 80IA and 80IB. However, considering the financial position and the need to secure the Revenue's claims, the court justified a partial stay but not a complete stay of the entire demand.

4. Adjustment of Refunds Against the Tax Demand:
The court addressed the dispute regarding the adjustment of refunds. The petitioner contended that the adjustment should be limited to the balance of the 15% deposit, while the Assessing Officer interpreted it to mean adjustment against the entire demand. The court clarified that the adjustment of refunds should be limited to the amount required for granting the stay, as per the Office Memorandum dated 29.02.2016. The court held that the Pr.CIT's order dated 26.08.2016 did not provide a proper clarification and was contrary to the modified instructions.

Conclusion:
The court disposed of the writ petition by holding that the petitioner is entitled to a stay of the demand subject to depositing the installments as required by the order dated 14.06.2016. Future refunds can be adjusted only to the extent of the balance amount directed to be paid as a condition for the stay. The respondents are entitled to withhold the refunds up to 31.10.2016 to challenge this order.