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TMI Blog2014 (4) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... l. By this petition under article 226 of the Constitution of India, the petitioner-assessee challenges the order dated January 3, 2014, of the Incometax Appellate Tribunal, ( the Tribunal ) directing the petitioner to deposit a further amount of Rs. 50 lakhs for staying the outstanding demand of Rs. 1.55 crores by way of penalty under section 271(1)(c) of the Income-tax Act, 1961 ( the Act ), for the assessment year 2004-05. The petitioner is engaged in the business of export of computer software and providing information technology enabled services. The petitioner had in its return of income for the assessment year 2004-05 filed on November 1, 2004, declared a total income of Rs. 56.60 lakhs. In its Form 3CEB, the petitioner had, inter alia, declared an amount of Rs. 5.86 crores paid as marketing expenses to its associated enterprises, namely, Deloitte Consulting LLP. The aforesaid expenses was thus referred by the Assessing Officer to the Transfer Pricing Officer. However, in the meantime, for the assessment year 2002-03, the Transfer Pricing Officer's order dated February 10, 2005, disallowed the expenditure on account of marketing expenses paid to the associated enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to the condition that the petitioner deposits an amount of Rs. 50 lakhs by March 31, 2013. This court in its above order dated January 30, 2013, had made the following observations in paragraphs 9 and 11 (page 164) : Prima facie, at this stage, it would appear from the record before the court that together with the return of income as originally filed, the petitioner annexed a copy of Form 3C in which there was a disclosure of the amount of Rs. 5.86 crores which was treated as a reimbursement in respect of marketing services alleged to have been availed of from Deloitte. The transfer pricing analysis which was filed during the course of assessment proceedings similarly indicated the basis on which the deduction was claimed, in paragraph 2.2 of the statement. When a revised return of income was filed, a disclosure was made to the effect that the return was revised with a view to add back the marketing expenses in the original return filed on November 1, 2004, with a view to avoid litigation in relation to the admissibility of the claim. The deduction under section 10A was stated to have been revised accordingly. The claim has been rejected by the Assessing Officer and in appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return was filed on March 29, 2006. It is pointed out that the revised return was filed in March, 2006, after the Transfer Pricing Officer by order dated February 10, 2005, for the assessment year 2002-03 did not accept the claim for marketing expenses paid to its associated enterprises. It is further submitted that in respect of the assessment year 2004-05, the Transfer Pricing Officer has passed an order on August 10, 2006, and based on it that the Assessing Officer passed an order on December 15, 2006. The petitioner had challenged the order dated December 15, 2006, before the Commissioner of Income-tax (Appeals), who dismissed the same on February 18, 2009. Being aggrieved by the said order of the Commissioner of Income-tax (Appeals), the petitioner filed an appeal before the Tribunal, which appeal was dismissed on March 30, 2012. It is, therefore, contended that when the petitioner had filed the original return for the assessment year 2004-05, the Transfer Pricing Officer had not even passed any order for any earlier year and the earliest order being, for the assessment year 2002-03, was passed by the Transfer Pricing Officer on February 10, 2005. The learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the stay application (page 160) : Parameters (a) While considering the stay application, the authority concerned will at least briefly set out the case of the assessee. (b) In cases where the assessed income under the impugned order far exceeds returned income, the authority will consider whether the assessee has made out a case for unconditional stay. If not, whether looking to the questions involved in appeal, a part of the amount should be ordered to be deposited for which purpose, some short prima facie reasons could be given by the authority in its order. (c) In cases where the assessee relies upon financial difficulties, the authority concerned can briefly indicate whether the assessee is financially sound and viable to deposit the amount if the authority wants the assessee to so deposit. (d) The authority concerned will also examine whether the time to prefer an appeal has expired. Generally, coercive measures may not be adopted during the period provided by the statute to go in appeal. However, if the authority concerned comes to the conclusion that the assessee is likely to defeat the demand, it may take recourse to coercive action for which brief rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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