2019 (2) TMI 992 - AT - Income Tax

Stay of recovery of demand - comprising of tax and interest - Held that - As perused the orders of lower authorities and the stay petitions filed by the assessee. Contention of the assessee is that if downward adjustment was done on the international transactions alone considered, the effect thereof would be ₹ 15,61,77,887/- only against the sum of ₹ 25,42,23,046/- considered by the AO. Though assessee may have a prima facie case, it has not been able to demonstrate any grave financial difficulties except for pleading that it is running in a loss. Considering the facts and circumstances of the case, we are of the opinion that if the assessee effects a payment of ₹ 90,00,000/- on or before first March, 2019, balance of the demand can be kept in abeyance for a period of six months from the date of this order or date of pronouncement of the order in the appeal whichever falls earlier.- Stay petition filed by the assessee is partly allowed.

Summary

Issues:
Stay of recovery of demand of ?3,25,08,950/- comprising tax and interest - Downward adjustment of value of international transactions - Non-allowance of business loss for set off - Customs duty adjustment on imports and working capital adjustments - Treatment of depreciation as a nonoperating cost - Financial difficulties of the assessee - Grant of stay.

Analysis:
The judgment pertains to a stay petition filed by the assessee seeking to halt the recovery of a demand amounting to ?3,25,08,950/-, which includes tax and interest. The tax demand primarily arose due to a downward adjustment of ?25,42,23,046/- on the value of the international transactions of the assessee. The assessee contended that if the adjustment was made solely on the international transactions and not at the entity level, the quantum would be ?15,61,77,887/-, which was less than the returned loss. Additionally, the assessee argued that certain adjustments like customs duty on imports and working capital adjustments were not considered, and depreciation was wrongly treated as a nonoperating cost. The assessee highlighted potential hardship and inconvenience if the demand was enforced by the Revenue.

During the proceedings, the Departmental Representative opposed the grant of stay, asserting that the assessee failed to provide a valid reason for the stay. After considering the arguments from both parties, reviewing the orders of lower authorities, and examining the stay petitions, the Tribunal noted that while the assessee may have a prima facie case, it did not sufficiently demonstrate severe financial difficulties beyond stating it was operating at a loss. Despite acknowledging the contentions raised, the Tribunal decided that if the assessee made a payment of ?90,00,000/- by a specified date, the remaining demand could be deferred for six months from the order's date or the appeal's pronouncement date, whichever was earlier. The Tribunal partially allowed the stay petition under these conditions.

In conclusion, the Tribunal partially granted the stay petition filed by the assessee, subject to the payment of a specified amount by a set deadline, and deferred the remaining demand for a specific period. The judgment was pronounced in Chennai on the 15th day of February 2019.