2012 (9) TMI 85 - AT - Income Tax

Addition by invoking the provisions relating to the Transfer Pricing - assessee seeks stay of recovery of outstanding demand pending hearing - Held that - The assessed income of Rs.14.49 crores by TPO is nearly twice the returned income of Rs.8.29 crores - the recovery proceedings under S.220(6) were initiated without attending to or expressly rejecting the stay application filed by the assessee before the AO, thus this approach is certainly not appreciated In the manner of picking up the comparables for applying the TNMM method and rejecting the comparables provided by the assessee there exists a lack of transparency as AO should have provided opportunity as to why the comparables relied upon by the assessee are not acceptable. And the objections raised by the assessee before the lower authorities were not met by passing a speaking order - the assessee deserves grant of conditional stay on paying the whole of the tax component if easy instalment is granted - partly in favour of assessee.

Summary

Issues:
Stay of recovery of outstanding demand pending hearing and disposal of appeal ITA No.1961/Hyd/2011 for assessment year 2007-08.

Analysis:

Issue 1: Stay of Recovery of Outstanding Demand
The applicant, engaged in Information Technology enabled services, sought stay of recovery of outstanding demand pending appeal hearing. The assessing officer raised a demand of Rs.3,30,51,041, including tax and interest components. The applicant challenged the attachment of its bank account by the assessing officer during the pendency of the stay application. The applicant argued that the assessment order was high-pitched as the assessed income was almost twice the returned income. The applicant relied on CBDT guidelines and various court decisions to support the request for stay due to the substantial difference between assessed and returned incomes.

Issue 2: Violations of Natural Justice
The applicant's counsel highlighted violations of natural justice in the assessment process, particularly concerning the selection of comparables for the Transfer Pricing analysis. The counsel argued that the assessing officer failed to consider comparables provided by the applicant and conducted inquiries without addressing the applicant's objections. The counsel contended that the assessment might be set aside due to these procedural irregularities and lack of transparency.

Issue 3: Financial Position and Payment Capacity
The applicant presented a financial status report indicating limited cash availability, which would be significantly impacted by immediate recovery of the outstanding demand. The applicant expressed willingness to pay Rs.15 lakhs per month and requested an easy installment facility. The Departmental Representative opposed the stay request but suggested partial payment by the applicant. The Tribunal considered the financial position of the applicant and granted conditional stay, requiring payment of the tax component in installments and lifting the bank account attachment.

Conclusion
The Tribunal found the assessment to be high-pitched and highlighted procedural deficiencies in the assessment process. Considering the financial constraints of the applicant and the lack of response from the Revenue on the stay application, the Tribunal granted conditional stay of recovery of the outstanding demand. The Tribunal directed the Department to lift the bank account attachment and emphasized cooperation for the timely disposal of the appeal. The Stay Application was partly allowed with specific conditions for payment and installment facility.

This comprehensive analysis covers the key issues addressed in the legal judgment, including the stay of recovery of outstanding demand, violations of natural justice, and the financial position of the applicant. The Tribunal's decision and reasoning are outlined in detail, preserving the legal terminology and significant aspects of the judgment.