2018 (10) TMI 1266 - AT - Income Tax

Stay of demand - additions made to the income of the Appellant by the AO stem from the primary finding of the AO that the Appellant has fixed place and agency Permanent Establishment in India - Appellant is a company incorporated in and is a tax resident of United States of America - penalty levied at 100% of the alleged tax sought to be evaded - Held that - We find that in the case of CIT vs. Liquid Investment Limited 2010 (10) TMI 1021 - DELHI HIGH COURT has held that when substantial question of law is admitted by the Hon ble High Court the issue becomes debatable and therefore no penalty u/s. 271(1)(c) is leviable. Here also substantial question of law has been admitted before the Hon ble Delhi High Court as stated by the Ld. Counsel for the assessee therefore we grant the stay on the outstanding demand in dispute for the period of 180 days or till the disposal of the Main Appeal

Summary

Issues:
Stay of outstanding demand for assessment year 2001-02; Constitution of Fixed Place PE and Agency PE in India; Levying of penalty under section 271(1)(c) by AO; Appeal against penalty confirmation by Ld. CIT(A); Stay of penalty demand pending appeal before Tribunal.

Stay of Outstanding Demand:
The assessee sought a stay of the outstanding demand of ?24,93,590 for the assessment year 2001-02 under Rule 35A of the Income-tax Appellate Tribunal Rules, 1963. The appellant, a company incorporated in the United States, argued that its income was not taxable in India under the Act or the US tax treaty due to activities conducted outside India. Despite this, the AO assessed the income at ?69,93,234, attributing a portion to activities in India. The CIT(A) and the Tribunal upheld the findings regarding the existence of Fixed Place PE and Agency PE in India, reducing the income attribution percentage. An appeal was filed before the Delhi High Court challenging these findings.

Levying of Penalty:
During the pendency of the appeal before the High Court, the AO imposed a penalty of ?24,93,590, representing 100% of the alleged tax evasion. The Ld. CIT(A) upheld the penalty, prompting the assessee to appeal before the Tribunal. The assessee argued that since the High Court had admitted the appeal on the issue of the permanent establishment, the penalty was debatable and should not have been levied. Citing a judgment by the Delhi High Court, the Tribunal granted a stay on the penalty demand until the disposal of the main appeal.

Analysis:
The Tribunal considered the primary findings regarding the existence of Fixed Place PE and Agency PE in India, which formed the basis for the additions to the appellant's income. The appeal before the Delhi High Court challenged these findings, and during this period, the AO imposed a penalty which was confirmed by the Ld. CIT(A). However, the Tribunal, following the precedent set by the Delhi High Court, granted a stay on the penalty demand due to the admission of a substantial question of law by the High Court. The main appeal before the Tribunal was fixed for hearing, and the stay on the outstanding demand was granted for 180 days or until the disposal of the appeal. The Tribunal's decision was based on the debatable nature of the issue pending before the High Court, aligning with the legal principle that penalties should not be levied on debatable matters.