2024 (6) TMI 900 - BOMBAY HIGH COURT

Rejection of seeking a blanket unconditional stay on collection/recovery of tax and interest demands by Tribunal - Interim order passed by the Tribunal on the stay application - Tribunal instead granted a conditional stay requiring the petitioner to pay Rs. 230 crores, furnish a corporate guarantee from an associate company with unencumbered assets in India exceeding Rs. 900 crores, and cooperate in the expeditious disposal of the appeal - HELD THAT - We are not persuaded to accept the petitioner s contention that in the facts of the case, the recovery being in the nature of a protective recovery, it was not permissible for the Tribunal to pass the impugned order considering the decisions of the orders passed for assessment year 2008-09 as substantive year. The contention is that assessment year 2014-15 cannot be treated to be substantive, as there is no finality of adjustment - Although the Tribunal has made the observations as noted by us above, however, considering the orders passed on the subsequent assessment years (A.Ys. 2010-11, 2011-12, 2012-13), we are of the opinion that it would not be correct for the petitioner to raise a contention that the recovery as sought to be made for assessment year 2014-15 would be in the nature of a protective recovery. If such argument is accepted, orders that have been accepted by the petitioner in depositing the demands for the assessment years 2011-12 and 2012-13, (which is Rs. 50 crores and Rs. 100 crores respectively) could not have been passed. Moreover, such orders are accepted by the petitioner. Petitioner s contention that the assessment for the year in question, being a high-pitched assessment, such a demand would warrant a blanket stay - In the facts of the case, we are not inclined to accept such contention considering as to what has transpired for the previous years, i.e., A.Ys. 2008-09, 2010-11, 2011-12 and 2012-13. In such context, the petitioner s reliance on the decision of Valvoline Cummins Ltd. 2008 (5) TMI 20 - HIGH COURT OF DELHI would also not assist the petitioner, as the facts are completely distinct from the facts in hand. In the present proceedings, we are concerned with the interim order passed by the Tribunal on the stay application as filed by the petitioner, which is purely a discretionary order. We do not find that the discretion has been exercised by the Tribunal perversely or in the manner which the law would palpably not recognize. Referring to partial interference in condition no. (ii) as Tribunal has directed the petitioner to furnish a corporate guarantee from an associate company which has unencumbered assets in India in excess of the balance disputed demands, i.e., Rs. 900 crores we are of the opinion that such condition ought not to have been directed by the Tribunal in the facts and circumstances of the case and more particularly considering the interim orders passed for the prior years based on the same triggers of exercise of options. Such condition, therefore, is hereby substituted by directing the petitioner to furnish a corporate guarantee of its ultimate parent, namely, Vodafone International Holdings BV, Netherlands as accepted by the revenue in the assessment year 2008-09. In the light of the above discussion, except what has been modified by us in relation to condition no. (ii) as imposed by the impugned order, we are not inclined to interfere in the impugned order.