2015 (9) TMI 1349 - AT - Income Tax

Stay of recovery of tax demand - AO stay asking to the assessee to pay 50% of the outstanding demand in 18 equal monthly instalments. However, the assessee has not complied with the order of the AO granting the stay - Assessee failed to get relief from CIT(A), CCIT, CBDT - Now, the plea of the ld. AR is that absolute stay to be granted to the assessee as the assessee is Golden Egg laying Goose and immediate recovery of the outstanding disputed amount of tax would destroy the dayto- day operations of the assessee and the Department shall not destroy the tax paying assessee by creating such high-pitched demand, which is not sustainable in law. - Addition u/s.68 towards unexplained cash credit being inter corporate deposit taken from Cineyug - Disallowance towards interest payment to Cineyug - Disallowance of depreciation on the capitalized interest paid to Cineyug on petition u/s.154. Held that - the assessee has not made out a case to establish that there exists financial stringency to pay the outstanding demand by instalments. Since, the assessee has not paid any amount so far towards demand, we are not intending to grant absolute stay as requested by the assessee. On the other hand, we are inclined to grant conditional stay as follows (i) The assessee shall pay ₹ 10 crores on or before 15th Sept., 2015. (ii) The assessee shall pay 10% of the collection including receivables from various heads to the Department towards outstanding demand and this shall be paid once in a week i.e. Friday of every week. (iii) The assessee shall give total details of collections including receivables once in every week to the Department (iv) Further the assessee shall deposit all collections from various heads and receivables into bank account, which are disclosed bank accounts of the assessee and the assessee shall not open or operate any new bank account for its day-to-day operations in any place in the name of the assessee. (v) The assessee shall submit to the AO all details of bank account being operated by the assessee as of now. Thus, all the revenue, receipts and receivable shall deposit in various accounts to be brought to the knowledge of the Assessing Officer, once in every week and the assessee shall furnish the copy of challan of payment of 10% of the collections including receivables to the Department once in a week i.e. Friday of every week. Accordingly, recovery of balance outstanding tax is stayed for a period of 180 days or till the disposal of the appeals involved herein, whichever is earlier. If the assessee fails to comply any of the above conditions of the stay, the stay will get automatically vacated and the case will be taken out of hearing. With this observation, the stay petitions are partly allowed

Summary

Issues:
Stay of outstanding disputed demand of tax for assessment years 2009-10 and 2010-11 based on financial difficulties and legal grounds.

Analysis:
1. The assessee filed loss returns for AY 2009-10 and 2010-11, but the AO made substantial additions under section 68 and disallowed certain amounts. The AR argued that all requirements under section 68 were met, and the additions were based on surmises. The AR highlighted financial difficulties due to losses in previous years and erosion of paid-up capital, affecting day-to-day operations. The AR requested a stay of the entire demand of over Rs. 90 crores due to lack of immovable property for security.

2. The DR opposed the stay, claiming the assessee failed to prove financial difficulties adequately. The DR suggested the assessee pay at least 50% of the demand. Refuting the AR's arguments, the DR contended that the losses were mainly due to non-cash items like depreciation, and the business turnover was substantial, questioning the need for a stay.

3. The Tribunal noted the history of stay requests and orders, where previous authorities rejected stays or imposed conditions. Considering the non-compliance with earlier orders, the Tribunal granted a conditional stay. The conditions included an initial payment of Rs. 10 crores, weekly payments of 10% of collections to the department, and detailed reporting of financial transactions. The assessee was required to deposit all collections into disclosed bank accounts and provide account details to the AO weekly. The stay was granted for 180 days or until appeal disposal, subject to compliance.

4. The Tribunal emphasized that failure to meet the conditions would automatically vacate the stay. The case would proceed on the scheduled date, with both parties instructed to exchange paper books in advance. The Tribunal partially allowed the stay petitions, setting conditions to ensure compliance and safeguard departmental interests.

In conclusion, the Tribunal granted a conditional stay on the outstanding tax demand, emphasizing the importance of adherence to the specified conditions to maintain the stay. The decision aimed to balance the assessee's financial challenges with the department's interest in tax recovery, ensuring procedural compliance and accountability.