2020 (4) TMI 439 - AT - Income Tax

Stay of outstanding demand - assessee has paid 20% demand - HELD THAT - Considerable liability already discharged by the assessee, we are of the view that mitigating circumstances exist in the present case for stay of outstanding demand to the extent of ₹ 5,27,23,794/-. The AO shall be entitled to adjust the refund of excess tax claimed to be under the control of the department to the tune of ₹ 2,90,79,380/-. The Registry is directed to fix the relevant penalty appeals for AYs. 2007-08 to 2010-11 for out of turn hearing on 23/04/2020 as announced in the Open Court and informed to the representatives of both the sides. No separate notice of hearing would thus be required to be served. The parties will file all the requisite documents, such as, paper-book etc. well in advance for expeditious disposal of appeal. Stay granted is also subject to the condition that the assessee will fully cooperate in speedy disposal of the appeal and will not seek any adjournment on any grounds whatsoever save and except wholly unavoidable and bonafide circumstance preventing the assessee from participating in appellate proceedings before the Tribunal.

Summary

Issues: Stay of penalty demanded for AYs 2007-08 to 2010-11

Analysis:
1. The applicant assessee sought a stay of penalty demanded for assessment years 2007-08 to 2010-11, totaling ?8,18,03,174, due to transfer pricing adjustments and alleged 'base erosion'.
2. The assessee had paid 20% of the total penalty demand, amounting to ?2.02 Crores, and had an excess tax refund pending with the department of ?2.90 Crores, totaling compensation of 47% of the total demand.
3. The learned Senior Counsel argued that the penalty imposition was debatable, as the issue was referred to a Special Bench and later admitted by the High Court, indicating full disclosure of material facts by the assessee in quantum proceedings.
4. The Revenue opposed the stay applications, suggesting installment-based relief for the remaining tax outstanding.
5. The Tribunal considered the balance of convenience, the merits of the assessee's case, and the substantial liability already discharged, granting a stay of recovery of the balance outstanding amounting to ?5,27,23,794 for six months or until the disposal of the appeal by the Tribunal, whichever is earlier.
6. The Tribunal directed an out-of-turn hearing for the penalty appeals for AYs 2007-08 to 2010-11, scheduled for 23/04/2020, with no separate notice required, emphasizing cooperation for speedy disposal of the appeal to maintain the stay granted.
7. The stay was subject to the condition of the assessee's full cooperation in the appellate proceedings, with any non-compliance leading to the vacation of the stay and associated benefits.

This detailed analysis highlights the grounds, arguments, and considerations leading to the Tribunal's decision to grant a partial stay of the penalty demanded for the specified assessment years, based on the merits of the case and the circumstances presented by both parties.