2018 (5) TMI 1309 - AT - Income Tax

Stay of recovery of the demand - it was submitted that assessee presently is in severe financial crunch and if further amount is realized by the Department by way of coercive means, it will severely affect the business of the assessee and assessee will not be able to stand in the market - Held that - We deem it fit to stay the recovery of remaining amount subject to the deposit by the assessee of 50% of the total demand raised, which means that the assessee would another pay to the Department about 18.5% of the total outstanding demand. The Department will be entitled for encashment of three cheques towards the realization of demand but subject to the limit of 50% of the total outstanding demand. If there will be a shortfall despite encashment of cheques, the assessee will be liable to pay the remaining amount so as to make it 50% of the total demand within 15 days from today.

Summary

Issues: Application for Stay of Recovery of Demand

In this judgment by the Appellate Tribunal ITAT CHANDIGARH, the issue at hand was the application for Stay of recovery of the demand made by the assessee until the disposal of the present appeal. The key points raised by both parties revolved around the alleged discrepancy in the accounts of the assessee, the financial situation of the assessee company, and the payment already made towards the total demand raised by the Department.

Analysis:

The assessee, through their counsel, contended that the impugned demand was based on a discrepancy in the accounts, which the assessee explained as arising from unsold stock with the consignee. The counsel argued that the assessee had a strong case on merits, emphasizing the financial strain the company was facing. The Department, represented by the Ld. DR, opposed the Stay application, pointing out that the assessee had previously committed to paying the entire tax demand. The Department highlighted the payment made by the assessee and the post-dated cheques provided as part of the settlement.

Upon considering the submissions from both parties, the Tribunal acknowledged that the assessee had already paid a significant portion of the total demand and had issued post-dated cheques to the Department. The Tribunal recognized the financial difficulties faced by the assessee and the potential impact of further recovery on their business. As a result, the Tribunal decided to stay the recovery of the remaining amount, subject to the condition that the assessee deposit 50% of the total demand raised within 15 days. The Department was permitted to encash the post-dated cheques up to the limit of 50% of the outstanding demand, with the assessee liable to pay any shortfall to meet the 50% requirement.

The Tribunal clarified that the stay of recovery did not imply any decision on the case's merits and emphasized that the assessee must not cause delays in the appeal's disposal. Failure to comply could lead to the Department seeking vacation of the Stay. The recovery was stayed for six months or until the appeal's disposal, whichever came earlier, with the assessee's application treated as allowed.

In conclusion, the Tribunal balanced the interests of both parties by granting a partial Stay on the recovery of the demand, considering the financial constraints of the assessee while ensuring a significant payment towards the outstanding amount.