2018 (8) TMI 1263 - HC - Income Tax

Stay of demand - appeal is pending before CIT(A) - Held that - The said appeal is pending before the Appellate Authority. That does not mean that the petitioner cannot escape from the tax payable as per the orders passed by the Deputy Commissioner Income Tax dated 08.03.2017 exercising powers under section 154 of Income Tax Act. The Commissioner of Income Tax appeals is directed to dispose of the appeal pending before him on merits within ten weeks from the date of receipt of certified copy of this Order. Till such consideration of the appeal, the interim order granted by this Court shall enure to the benefit of the petitioner

Summary

Issues:
1. Recovery of disputed taxes under Section 154 of the Income Tax Act.
2. Stay on recovery pending appeal before the Commissioner of Income Tax (Appeals).
3. Coercive steps for recovery of taxes.
4. Withholding of refunds due to the petitioner.

Issue 1: The petitioner sought a writ of mandamus to prevent the recovery of disputed taxes mentioned in the order passed under Section 154 of the Act until the disposal of the application pending under Mutual Agreement Procedure. The petitioner, engaged in software development services, had filed a return of income for the assessment year 2013-14. The overseas subsidiaries to whom the onsite work was subcontracted were tax residents of various countries. The final assessment order determined the total income and tax payable by the petitioner. The petitioner, fearing coercive recovery steps, filed the writ petition seeking relief.

Issue 2: The petitioner contended that the recovery proceedings of income attributable to Mutual Agreement Procedure were illegal and unsustainable. The petitioner argued for a stay on the recovery, citing disallowance under Section 40(a)(ia) of the Act and deductions under various sections. The petitioner relied on a Division Bench judgment regarding disallowance under Section 40(a)(ia) and sought allowance of the petition.

Issue 3: The respondent justified the recovery action, stating that the petitioner had filed an application for stay during the appeal process. The respondent referred to relevant instructions and orders related to the payment of the disputed demand. The respondent argued that the Assessing Officer had addressed the contentions of the assessee regarding tax deductions at source. The respondent contended that the petitioner had not made out a case for interference by the Court and that the stay of recovery was not warranted.

Issue 4: The Court directed the Appellate Authority to dispose of the appeal within eight weeks, maintaining the interim order in favor of the petitioner. The Court emphasized the need for expeditious disposal of the appeal, without delving into the merits of the arguments presented. The writ petition was disposed of with directions for the timely resolution of the pending appeal, leaving all contentions open to be raised before the Appellate Authority.