2018 (11) TMI 386 - AT - Income Tax

Seeking stay of disputed outstanding demand - partial recovery made - Held that - Recovery is already made by the AO of ₹ 22,72,75,655/- which is about 66% of the gross disputed outstanding demand of ₹ 34,51,73,238/- and hence, we feel it proper to grant stay of the disputed outstanding demand for a period of six months from the date of this order or till the disposal of these appeals whichever is earlier. Also in case, there is any change in this factual position because of any refund by the AO against the said recovery u/s 266 (3), both parties will be at liberty to seek amendment in this stay order. We have noted that the hearing of these appeals was first fixed on 25.09.2018 and on this date, the hearing was adjourned to 15.10.2018. On 15.10.2018, the hearing was adjourned to 31.0.2018 and on 31.10.2018, since the bench did not function; the hearing was again adjourned to 07.02.2019. In view of granting of stay, we prepone the hearing to 03.12.2018 and the registry is directed to issue notices to both sides. We want to make it clear that the assessee should not seek any adjournment in course of hearing of these appeals without justifiable reasons and if the assessee does so, then the stay granted by this order shall stand vacated automatically.

Summary

Issues:
Stay of disputed outstanding demand for Assessment Years 2011-12, 2012-13, 2013-14, and 2015-16; Refund of excess amount by AO; Contempt proceedings; Granting of stay by the Tribunal.

Analysis:

Stay of Disputed Outstanding Demand:
The assessee filed four stay petitions seeking a stay of the disputed outstanding demand totaling &8377; 34,51,73,238 for the mentioned assessment years. The AO had already recovered &8377; 22,72,75,655, which is approximately 66% of the total disputed demand. The assessee requested a stay of the gross demand before the recovery by the AO and also sought a direction for the AO to refund the excess amount of &8377; 15,82,41,007. The Revenue argued that the issue of refund was sub judice before the High Court, and the Tribunal should not interfere. The Tribunal observed the legal proceedings and held that it cannot intervene in the matter of the AO refunding the directed amount.

Refund of Excess Amount by AO:
The single judge bench of the High Court had directed the AO to refund the excess amount collected within a specified period. The Division Bench did not grant a stay on this judgment but instructed the assessee not to initiate contempt proceedings. As the issue of the refund was pending before the Division Bench, the Tribunal refrained from interfering in the matter, respecting the jurisdiction of the High Court.

Contempt Proceedings:
The Tribunal noted that the assessee had the option to file a contempt petition before the High Court if the AO failed to refund the directed amount. However, as the Division Bench had instructed against initiating contempt proceedings and the matter was sub judice, the Tribunal did not intervene in the issue of the AO's refund.

Granting of Stay by the Tribunal:
Considering the facts that a significant portion of the disputed demand had already been recovered by the AO, the Tribunal granted a stay of the remaining disputed outstanding demand for a period of six months or until the disposal of the appeals, whichever is earlier. Both parties were given the liberty to seek an amendment in the stay order if there were any changes in the factual position due to a refund by the AO. The Tribunal expedited the hearing and directed both sides to appear on a specified date.

In conclusion, the Tribunal allowed the assessee's stay petitions as per the terms mentioned, ensuring a fair and balanced approach while respecting the legal proceedings before the High Court.