9911796707
TMI Blog2008 (4) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.56 18.24 2001-02 7.03 9.73 16.76 2002-03 6.40 6.91 13.31 2003-04 5.11 4.02 9.13 2004-05 2.04 1.08 3.12 ----- Total 83.74 ----- Less : Already paid 11.00 ----- Outstanding demand 72.74 ----- 2. The facts of the case which are relevant in the present context are that the assessee is a non-resident company incorporated in Hong Kong. It is engaged in the business of providing telecommunication services and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenging the reassessment proceedings initiated against it for the years under consideration. The relevant details required by the Assessing Officer, however, were not furnished by it which culminated in the assessments being completed by the Assessing Officer ex parte to the best of his judgment under section 144. In the said assessments, the income of the assessee company chargeable to tax in India was estimated by him at Rs. 564 crores for each of the six relevant years and a demand of Rs. 1,535.19 crores inclusive of tax and interest was raised by him against the assessee. The said assessments made by the Assessing Officer under section 144 were challenged by the assessee company in the appeals filed before the learned CIT(A) who, vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt years i.e., assessment years 1999-2000 to 2004-05 at Rs. 47.93 crores, Rs. 42.81 crores, Rs. 45.02 crores, Rs. 35.47 crores, Rs. 28.87 crores and Rs. 11.79 crores respectively. As a result of this relief allowed by the learned CIT(A), the demand originally raised against the assessee was reduced to Rs. 83.74 crores and after adjustment of the payment of Rs. 11 crores already made by the assessee, the net outstanding demand as on date stands at Rs. 72.74 crores which is being sought to be stayed by the assessee by the present applications. 3. We have heard the arguments of both the sides and also perused the relevant material on record. The learned counsel for the assessee has submitted before us that the entire demand outstanding again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telecommunication service providers as being wholly taxable in India whereas if he had correctly applied the law then, without prejudice, only 1.31 per cent of such revenues could be taxable in India. The submissions of the assessee on erroneous estimation of incomes from sources 2 and 3 and denial of attribution of income from source 1, if accepted would significantly reduce the quantum of income assessed in the assessee s hands and would reduce the disputed demand significantly by Rs. 76.20 crores (i.e., tax demand of Rs. 32.85 crores and interest demand of Rs. 43.35 crores) for all the assessment years. After taking into account the amount of Rs. 11 crores already paid by the assessee, nothing further would be payable and indeed, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief of Rs. 42.99 crores (i.e. tax demand of Rs. 16.67 crores and interest demand of Rs. 26.32 crores) to the assessee. (vi) Section 234B of the Act provides that interest is leviable only for defaults in payment of advance tax. [Reference Motorola Inc. v. Dy. CIT [2005] 95 ITD 269 (Delhi)(SB)]. It is now a settled proposition that advance tax does not apply to income chargeable to tax in India on which tax is required to be deducted at source under the provisions of Chapter XVII-B of the Act. Since, without prejudice any income of the assessee would have been subject to deduction of tax at source under section 195 (forming part of Chapter XVII-B) of the Act (irrespective of whether the amount of tax has actually been deducted or collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Moreover, as pointed out in the present applications, there are accumulated losses of approximately Rs. 9,452 crores in the consolidated accounts of the group to which the assessee company belongs and the recovery of the entire outstanding demand may cause hardship to it at this stage when its appeals disputing the said demand are pending before the Tribunal. 5. Having regard to all the aspects of the matter as discussed above, we are of the view that the balance of convenience clearly lies in favour of the assessee and it is a fit case to grant the stay of outstanding demand as sought by the assessee in the present applications subject to payment of Rs. 1,00,00,000 (Rupees one crore) by the assessee on or before 20-5-2008 and furnishin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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